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Full text of "International law studies 1966; Studies in the law of naval warfare: submarines in general and limited wars"

NAVAL WAR COLLEGE 
NEWPORT, RHODE ISLAND 



INTERNATIONAL LAW STUDIES 

1966 

Studies in the Law of Naval Warfare : 
Submarines in General and Limited Wars 



by 

W. T. Mallison, Jr. 



$ 



NAVPERS 15031 
Volume LVIII 



UNITED STATES 

GOVERNMENT PRINTING OFFICE 

WASHINGTON : 1968 



For sale by the Superintendent of Documents, U.S. Government Printing Office 
Washington, D.C. 20402 - Price $1.75 



FOREWORD 

The study of International Law has been an important part of the 
curriculum at the Naval War College since its founding in 1884. From 
1894 to 1900, certain lectures given on International Law together with 
the situations studied were compiled and printed, but with very limited 
distribution. Commencing in 1901, however, the first formal volume of 
the Naval War College's "Blue Book" series was published. 

This book represents the fifty-ninth volume in the series as numbered 
for cataloging and reference purposes. The present volume is written by 
Professor William T. Mallison, Jr. of The George Washington University 
National Law Center who occupied the Charles H. Stockton Chair of 
International Law at the Naval War College during the 1960-1961 
academic year. It is considered that Professor Mallison's book presents 
an orderly, objective and concise discussion of the laws of naval warfare 
with special emphasis on submarines. 

The opinions expressed in this volume are those of the author and 
are not necessarily those of the United States Navy or the Naval War 
College. The fact of publication does not imply endorsement of content 
but indicates merely that the subject treated is one which merits attention. 



John T. Hayward 

Vice Admiral, U.S. Navy 
President, Naval War College 



in 



PREFACE 

The historic function of the laws of war has been to impose restraints 
upon international violence in the common interest of the community 
of the states. This study provides analysis of some of the more important 
juridical issues arising in naval warfare. These issues concern the sub- 
marine, but the significance of a number of them extends beyond the 
juridical control of submarine warfare. 

The major claims arise in four principal categories in Chapters II 
through V: the lawfulness of particular combatants, areas of operation, 
objects and methods of attack, and weapons. In each functional category 
a central object is to focus juridical analysis upon some of the actual fact 
situations in warfare where the laws of war are applicable. The issues 
concerning the long-distance surface naval blockade considered in Chap- 
ter III provide context for the appraisal of submarine operational areas. 
The problems concerning the lawfulness of particular objects and methods 
of attack in Chapter IV are relevant also to surface and aerial naval war- 
fare. Some of the weapons juridically appraised in Chapter V transcend 
naval warfare and raise issues concerning the juridical control of strategic 
aerial bombardment. 

The writer believes that this study will perform a constructive task if it 
assists naval officers in understanding the practical importance of the laws 
of war and, in particular, the basic consistency between considerations of 
humanity and those of military efficiency. In the same way, the writer 
hopes there will be a constructive role for the study in assisting inter- 
national lawyers to appreciate the capacity of the laws of war to at least 
minimize the destruction of human and material values in situations of 
international coercion. 

In order to determine the modern adequacy of the laws of war in per- 
forming their humanitarian functions, certain future projections must be 
made. A dichotomy projecting general and limited wars appears to cover 
the two principal alternatives in a world where international coercion has 
not yet been eliminated. The two World Wars provide the principal 
general war experience in which the juridical control of submarines has 
been attempted. Since 1945 the only actual experience concerning inter- 
national coercion has been with limited war or hostilities. It seems prob- 
able that such limited coercion is of future as well as contemporary signifi- 

v 



VI 



cance. Its effective control through law, consequently, is likely to be of 
continuing importance. For these reasons the systematic attempt to ap- 
praise the principal claims categories in the context of contemporary and 
future limited war seems necessary. 

Even if it is concluded that the laws of war can be used to provide 
some significant protection for humanity under modern conditions, it 
seems clear that additional steps must be taken to achieve humanitarian 
objectives by improving world order. The contemporary minimum world 
public order system may be described as one which simply prohibits coer- 
cion for aggressive purposes while retaining the right to employ it for 
national and collective defense. An optimum world public order system 
may be conceived as retaining the elements of the minimum system and 
also involving a peaceful and democratic environment in which each 
individual may seek values without regard to discriminations which are 
irrelevant to his worth and capacity as an individual. 

The instability and general inadequacy of the contemporary minimum 
system based in substantial part upon nuclear deterrence when compared 
with a possible optimum order based upon improved institutions and sanc- 
tions is obvious. Although beyond the scope of the present study, it is 
clear that effectively sanctioned disarmament would provide a practical 
means of building optimum world order. Modest steps have already been 
taken including the establishment of the Washington-Moscow "hot-line" 
communications system in 1963, to promote the prevention of an accidental 
triggering of world holocaust, and the Limited Nuclear Test Ban Treaty 
( 1 963 ) . An additional constructive step would be the implementation of 
the Treaty on Principles Governing the Activities of States in the Explora- 
tion and Use of Outer Space, Including the Moon and Other Celestial 
Bodies drafted in the United Nations in 1966. In taking the further steps 
which are necessary to improve the world order system, it should be recog- 
nized that the historic failures of disarmament in earlier times and under 
different conditions are of reduced relevance today. 

Finally, it may be suggested that the contemporary minimum order 
system, although inadequate in many respects, is consistent with and in- 
deed the indispensable first step toward the objective of achieving an 
optimum world order. Because of this, the laws of war will continue to 
have a practical humanitarian role until all international coercion is effec- 
tively eliminated. 



W. T. Mallison, Jr. 

Professor of Law 

The George Washington University 

Washington, D. C. 



ACKNOWLEDGEMENTS 

The author has benefited from the assistance of many individuals. Vice 
Admiral Oswald S. Colclough, USN (Ret.), former President of The 
George Washington University and Dr. Louis H. Mayo, the Vice Presi- 
dent of The George Washington University for Advanced Policy Studies, 
have contributed interest and support. Dr. Lloyd H. Elliott, President of 
The George Washington University, and Dean Robert Kramer of the 
National Law Center have assisted through their support of research and 
writing in the Law Center. Other friends and colleagues have assisted the 
work in various ways. 

Four Presidents of the Naval War College, Vice Admirals S. H. Inger- 
soll, B. L. Austin, C. L. Melson, and J. T. Hayward, have facilitated the 
research and writing of the study. The interest of Admiral Hayward and of 
Rear Admiral F. H. Schneider, the Chief of Staff of the War College, in 
the subject of limited war is particularly appreciated. Captains G. S. Bo- 
gart and E. R. Schwass, the Director and Assistant Director of the School 
of Naval Command and Staff have assisted the writer in many ways. A 
portion of the research for the book was done during the academic year 
1960-61 at the Naval War College and the writer was assisted by his 
colleagues at that time and particularly Rear Admiral E. E. Colestock, 
Captain C. R. Davis, Captain P. R. Schratz, and Commander B. I. Am- 
man. 

For collegial cooperation and valued assistance in the preparation of the 
typescript for the printer the writer is indebted to Commander H. S. 
Palau. Colonel T. C. Dutton, USMC, Director of the Correspondence 
School of the Naval War College and the entire staff of that School 
assisted in many ways. 

The Judge Advocate General of the Navy, Rear Admiral W. A. Hearn, 
and his predecessor, Rear Admiral W. C. Mott, have provided interest 
and support. Captain J. R. Brock, Director of the International Law Divi- 
sion of the Office of the Judge Advocate General and his staff including 
Dr. Liselotte B. Watson effectively aided the study. Captain G. E. Carlisle, 
formerly Director of the International Law Division and now Legal Officer 
of the Thirteenth Naval District, made a particular contribution through 
his constructive comments concerning the typescript. Helpful comments 
were received from Lieut. Comdr. C. Paul Ake. 

VII 



VIII 

Rear Admiral E. M. Eller, the Director of Naval History, assisted the 
study by obtaining the declassification of relevant Department of the Navy 
documents. The writer is indebted to Rear Admiral H. A. Renken for 
thoughtful help in formulating basic problem areas. 

Efficient assistance was received from the staffs of the following 
libraries: Mahan Library at the Naval War College and particularly Mrs. 
Lucille Rotchford, the Reference Librarian; The George Washington Uni- 
versity Library and Law Library and particularly Professor Hugh. Y. 
Bernard, Mrs. Vera Taborsky, and Mr. William Hilleary; the Department 
of the Navy Library and particularly Mr. Frederick S. Meigs, the Assistant 
Librarian; the Department of the Army Library: the Library of Congress 
and particularly Dr. Sung Y. Cho; the Law Library of the Department 
of State; and the Librarian and staff of the Yale Law School Library. 
Mr. D. A. Peterson of the Department of State and Major N. P. Thorpe, 
USAF, also assisted in obtaining necessary sources. 

Mr. Robert J. Patton, Jr. of the Board of Editors of the George Wash- 
ington Law Review prepared the index and assisted effectively in other 
ways. The Rockport Fund of the National Law Center provided financial 
assistance in preparing the book for the printer. 

Students in both lecture and seminar groups at the Naval War College 
and at The George Washington University Law Center contributed much 
to the work. Those students at George Washington enrolled in the seminar 
entitled "Legal Regulation of International Coercion" (formerly entitled 
"Legal Problems in Modern Methods of Warfare") should be mentioned 
particularly. Mr. Peter Heidenberger of the Washington, D. C. Bar has 
assisted concerning German language documents. 

The writer has a deep and continuing obligation to Myres S. McDougal, 
Sterling Professor of Law at Yale University, for his interest, encourage- 
ment, and professional stimulation extending over a period of many years. 
Professor McDougal has made many constructive suggestions concerning 
the present study. 

This book would not have been written without the participation of 
the writer's wife, Sally Vynne Mallison. 

The analyses and conclusions of the study are those of the author alone. 



W. T. Mallison, Jr. 



TABLE OF CONTENTS 

Page 

FOREWORD HI 

PREFACE V 

SHORT FORMS OF REFERENCES CITED XIII 

Chapter 

I. SUBMARINE WARFARE AND INTERNATIONAL LAW 1 

A. The Submarine in Naval Warfare 2 

1. The Dual-Powered Submarine 2 

a. Performance Characteristics 2 

b. Combat Capabilities 4 

2. The Nuclear- Powered Submarine 6 

a. Performance Characteristics 6 

b. Combat Capabilities 8 

3. Future Submarine Warfare 9 

B. Principal Claims Categories in Submarine Warfare 10 

1. Claims Concerning Combatants 10 

2. Claims Concerning Areas of Belligerent Operation 11 

3. Claims Concerning Objects and Methods of Belligerent Attack 11 

4. Claims Concerning Weapons of Belligerent Attack 11 

C. The Laws of War: Sources, Principles, and Sanctions 12 

1. Sources of Decision 12 

a. Conventional Law 13 

b. Customary Law 15 

2. Basic Principles 16 

3 . Sanctions 19 

D. Situations Where the Laws of War Are Applicable 22 

E. Limited War and the Effective Control of International Coercion 25 

II. CLAIMS CONCERNING LAWFUL COMBATANTS 29 

A. Warships as Lawful Combatants 29 

B. Claims to "Abolish" or Limit Submarines as Combatants 31 

1. The Hague Peace Conferences 31 

a. The 1899 Conference 31 

b. The 1907 Conference 33 

2. The First World War 34 

a. The Punitive Treatment of Captured Personnel 34 

b. The Partial "Abolition" of Submarines 35 

3. Naval Disarmament and Limitation Between the World Wars 36 

a. The Washington Conference (1921-1922) 36 

(1) The Washington Naval Treaty (1922) 36 

(a) Abolition 36 

(b) Limitation 40 

IX 



Page 

(2) The Submarine Treaty (1922): Submarine Personnel as 

Pirates 41 

b. The Geneva Naval Conference (1927) 43 

c. The London Naval Treaty (1930) 43 

(1) Abolition 43 

(2) Limitation 46 

d. The London Naval Treaty (1936) 47 

4. The Spanish Civil War and the Second World War 47 

a. The Nyon Agreement (1937) 47 

b. The Undeclared Atlantic Naval War (1941) 49 

c. The Partial "Abolition" of Submarines (1945) 50 

d. The International Military Tribunal at Nuremberg (1946) 50 

C. Submarines as Lawful Combatants 51 

1. General War 52 

2. Limited War 52 

III. CLAIMS CONCERNING LAWFUL AREAS OF OPERATION: 

SUBMARINE OPERATIONAL AREAS 55 

A. The Economic Warfare Context of Claims to Establish Operational 

Areas in General War Situations 56 

B. Claims to Establish Submarine Operational Areas in General War 

Situations 61 

1. German Claims 62 

a. The First World War 62 

(1) Appraisal as Reprisal 65 

(2) Appraisal as Claim of Right 69 

b. The Second World War 75 

Appraisal 76 

c. Claims to Establish Rescue Zones of Immunity 84 

2. United Kingdom Claims 86 

Appraisal 86 

3. United States Claims 87 

Appraisal 88 

4. Submarine Operational Areas in Future General War 91 

C. Claims to Establish Submarine Operational Areas in Limited War 

Situations 93 

1. Claims by Major Powers in Limited War 93 

2. Claims by Minor Powers in Limited War 94 

3. Claims to Establish Restricted "Operational Areas" 95 

IV. CLAIMS CONCERNING LAWFUL OBJECTS AND METHODS OF 

BELLIGERENT ATTACK 97 

A. The Traditional Law Concerning Objects and Methods of Attack in 

Naval Warfare 98 

1. Methods: Visit, Search, and Capture 99 

2. Objects: Enemy Ships and Goods 101 

3. Objects: Neutral Ships and Goods 103 

B. Claims Concerning Objects and Methods of Attack in General War .... 105 

1. Capture or Destruction of Enemy Warships 105 

2. Capture or Destruction of Enemy Merchant Ships 1 06 

a. World War I 106 



XI 

Page 

b. World War II 113 

c. The Law of Naval Warfare 122 

3. Immune Enemy Ships 123 

a. Hospital Ships 124 

b. Cartel and Similar Ships 126 

c. Coastal Fishing Boats 126 

d. Other Immune Vessels 128 

4. Capture or Destruction of Neutral Merchant Ships 129 

a. Neutrals Which Are Integrated into the Enemy War Effort .... 129 

b. Neutrals Which Are Not Participating in the War or Hostilities 132 

5. Enemy Personnel as Objects of Attack 132 

a. The Duty to Give Quarter 133 

b. Duties to Survivors 134 

c. The Prohibition of Killing Survivors 139 

6. Objects and Methods of Attack in Future General War 143 

C. Claims Concerning Objects and Methods of Attack in Limited War 146 

1. Claims by Major Powers in Limited War 146 

2. Claims by Minor Powers in Limited War : 148 

V. CLAIMS CONCERNING LAWFUL WEAPONS OF BELLIGERENT 

ATTACK 151 

A. The Historic Experience Concerning the Abolition or Limitation of 

Weapons 151 

B. Claims Concerning Weapons of Attack in General War 155 

1. Traditional Naval Weapons 157 

2. Traditional Naval Bombardment 160 

3. Biological and Chemical Weapons 161 

4. Nuclear Weapons 167 

a. The Lawfulness of Nuclear Weapons 167 

b. The Lawfulness of Particular Uses of Nuclear Weapons 172 

(1) Claims Concerning Nuclear Weapons in Naval Warfare ... 173 

(2) Claims Concerning Strategic Nuclear Bombardment 175 

(a) Claims Concerning Target Selection 176 

(b) Claims Concerning the Limitation of Destruction 177 

C. Claims Concerning Weapons of Attack in Limited War 181 

1. Traditional Naval Weapons 183 

2. Traditional Naval Bombardment ... 184 

3. Biological and Chemical Weapons 185 

4. Nuclear Weapons 187 

APPENDIX A. The London Naval Treaty of 1930 191 

APPENDIX B. Document Ddnitz-100 192 

APPENDIX C. Geneva Convention for the Amelioration of the Condition of 
Wounded, Sick and Ship-Wrecked Members of Armed Forces at Sea of 

August 12, 1949 196 

INDEX— Subject 213 

TABLE OF CASES 299 



SHORT FORMS OF REFERENCES CITED 



A.J.LL. 
Brit. Y.B.LL. 

Buehrig 

Cagle & Manson 
Colombos 

F.E.LM.T. Judg. 

F.E.LM.T. Proc. 



Garner 

Garthoff 

Geneva Sea 
Convention 



Grotius Trans. 
Hackworth 

Harvard Research, 
Naval War 

Harvard Research, 

Treaties 
Hyde 



I.M.T. 



= American Journal of International Law 

= British Year Book of International Law 

= Buehrig, Woodrow Wilson and the Balance of 
Power (1955) 

= Cagle & Manson, The Sea War in Korea (1957) 

= Colombos, The International Law of the Sea 
(5th rev. ed. 1962) 

= Judgment of the International Military Tribunal 
for the Far East (1948) 

= Proceedings of the International Military Tri- 
bunal for the Far East (Apr. 29, 1946-Apr. 16, 
1948; approx. 50,000 mimeographed pages and 
separate volume for each day of the trial) 

= Garner, International Law and the World War 
(2 vols. 1920) 

= Garthoff, Soviet Strategy in the Nuclear Age 
(rev. ed. 1962) 

= The Geneva Convention for the Amelioration of 
the Condition of Wounded, Sick, and Ship- 
wrecked Members of the Armed Forces at Sea 
(1949) 

= Transactions of the Grotius Society 

= Hackworth, Digest of International Law (8 vols. 
1940-1944) 

= Harvard Research in International Law, Rights 
and Duties of Neutral States in Naval and Aerial 
War, 33 A.J.LL. Supp. 167 (1939) 

= Harvard Research in International Law, Law of 
Treaties, 29 A.J.LL. Supp. 653 (1935) 

= 3 Hyde, International Law : Chiefly as Inter- 
preted and Applied by the United States (2nd 
rev. ed. 1945) 

= Trial of the Major War Criminals Before the 
International Military Tribunal at Nuremberg 
(42 vols. 1947-1949) 



XIII 



XIV 



/. Royal United 

Serv. Inst. 
Kuenne 

Law of Land Warfare 

Law of Naval Warfare 

London Conf. 



McDougal & Feliciano = 



Medlicott 



Nav. Inst. Proc. = 

Oppenheim- = 

Lauterpacht 

Osgood = 

Potter & Nimitz = 

Proc. A.S.I.L. = 

Reps. U.N. Comm. = 



Roskill 

Royse 

Scott 

Smith 

Spaight 

Stone 



= Journal of the Royal United Service Institution 



Kuenne, The Attack Submarine: A Study in 
Strategy (1965) 

Department of the Army, The Law of Land War- 
fare (FM 27-10, 1956) 

Department of the Navy, Law of Naval Warfare 
(NWIP 10-2, 1955) 

Department of State, Proceedings of the London 
Naval Conference of 1930 and Supplementary 
Documents (Conference Series No. 6, 1931) 
McDougal & Feliciano, Law and Minimum 
World Public Order: The Legal Regulation of 
International Coercion (1961) 
Medlicott, The Economic Blockade (2 vols., 
1952 and 1959) (History of the Second World 
War, United Kingdom Civil Series) 
United States Naval Institute Proceedings 
2 Oppenheim, International Law: Disputes, War 
and Neutrality (7th ed. Lauterpacht 1952) 
Osgood, Limited War: The Challenge to Ameri- 
can Strategy (1957) 

Potter & Nimitz (editors), Sea Power: A Naval 
History (1960) 

Proceedings of the American Society of Inter- 
national Law 

United Nations War Crimes Commission, Law 
Reports of Trials of War Criminals (15 vols. 
1947-1949) 

Roskill, White Ensign: The British Navy at War 
1939-1945 (1960) 

Royse, Aerial Bombardment and the Interna- 
tional Regulation of Warfare (1928) 
Scott, The Hague Peace Conferences of 1899 
and 1907 (vol. 1 -Conferences; vol. 2-Documents; 
1909) 

H. A. Smith, The Law and Custom of the Sea 
(3rd ed. 1959) 

Spaight, Air Power and War Rights (3rd ed. 
1947) 

Stone, Legal Controls of International Conflict 
(Rev. with supp. 1959) 



XV 



Submarine Protocol 
or article 22 of the 
London Naval 
Treaty of 1930 

Trials of War Crims. 



= Full citations appear in Chapter III, note 114 



Tucker 



Wash. Conf. 



Whiteman 



U.S. Government, Trials of War Criminals 

Before the Nuernberg Military Tribunals under 

Control Council Law No. 10 (15 vols. 1946- 

1949) 

Tucker, The Law of War and Neutrality at Sea 

(U.S. Naval War College, International Law 

Studies 1955) (1957) 

[Washington] Conference on the Limitation of 

Armament [1921-1922], S. Doc. No. 126, 67th 

Cong., 2dSess. (1922) 

Whiteman, Digest of International Law (5 vols. 

through March 1967) 



CHAPTER I 
SUBMARINE WARFARE AND INTERNATIONAL LAW 

This study is within the subject of public international law. More spe- 
cifically, it concerns the laws of war which are designed to promote hu- 
manitarianism by mitigating the destruction of human and material values 
which is involved in war. At the outset, it should be stated that it would 
be far better to abolish war in the present highly interdependent world 
community than merely to control it. Until it can be abolished, however, 
it is necessary to control it as effectively as possible because of the tre- 
mendous destructiveness of contemporary weapons and the crucial im- 
portance of the values to be protected. 1 

In view of the large number of limited wars which have taken place 
since the conclusion of the Second World War, the juridical regulation of 
war is a practical matter in the world community both now and in the 
foreseeable future. Limited wars reflect the common interest of the com- 
munity of states in minimizing the extensity and intensity of the coercion 
employed. 2 If limited wars are to be kept limited rather than be "esca- 
lated" into general wars it is essential to apply the insights of public inter- 
national law to this task. 

This study focuses attention upon that part of the laws of war which 
regulate naval warfare, and more particularly, submarine warfare. During 
the World Wars two of the most important groups of juridical issues in 
naval warfare have related to the long-distance naval blockade enforced 
by surface warships and to submarine warfare. By using submarine war- 
fare as an organizing principle it is not necessary to give consideration to 
many of the traditional and routine juridical issues of naval warfare which 
are covered adequately elsewhere. 3 

The present study employs both customary international law (the im- 
plicit agreement of states) and treaty or conventional international law 



1 Not all international lawyers agree with the text. See, e.g., Professor Fenwick: 
"The laws of war belong to a past age and except for a few minor matters of no 
consequence, it is futile to attempt to revive them. . . . War has got beyond the 
control of law " 43 Proc. A.S.I.L. 110 (1949). 

2 See generally Osgood passim and Halperin, Limited War in the Nuclear Age 
(1963). 

3 Tucker is a text which considers the traditional laws of war at sea. 

1 



(the explicit agreement of states), rather than being restricted to tradi- 
tional judicial materials. Judicial materials, including the war crimes trials, 
will be considered and applied in the inquiry where they are relevant. 

A. THE SUBMARINE IN NAVAL WARFARE 

In examining the law of submarine warfare one may profit from some 
knowledge of the submarine and its role in warfare. The object of naval 
warfare is sometimes stated to be the obtaining of control of the sea for 
one's own purposes while denying its use to the enemy. 4 Submarines, like 
other warships, may be used to achieve this objective. The unique ability 
of the submarine warship to submerge enables it to operate independently 
in high seas areas where the enemy maintains general control over the 
surface of the sea. 5 

The history of submarine warfare, or of warfare submerged, may be 
traced in Herodotus to the famous feat of Scyllias of Scion and his diving 
daughter who, we are told, swam under the ships of Xerxes and cut their 
anchor chains. 6 Submarine warships were employed in war prior to the 
First World War. 7 It was not until their extended use in that war, however, 
that their military significance as warships was recognized. 8 Before that 
war the principal projected use of submarines was against surface warships 
rather than against merchant ships. 9 

1. The Dual-Powered Submarine 

a. PERFORMANCE CHARACTERISTICS 

Other than its submergibility, the most striking characteristic of 



4 See Potter & Nimitz 2. 

8 "[T]he submarine still remains the only type of ship — and here I include aircraft 
in the term 'ship' — that can maintain itself unsupported for long periods in the face 
of a distant enemy." Barry, "The Development of the Submarine," 80 /. Royal 
United Serv. Inst. 126, 138 (1935). 

8 Herodotus, Book VIII Urania 584-85 (Isaac Taylor transl. 1829). See also 
Field, "The Beginnings of Submarine Warfare," 64 /. Royal United Serv. Inst. 382, 
383 (1919). 

7 See e.g. Bolander, "The Alligator, First Federal Submarine of the Civil War," 
64 Nav. Inst. Proc. 845 (1938); Von Kolnitz, "The Confederate Submarine," 63 
Nav. Inst. Proc. 1453 (1937). See generally Lake, The Submarine in War and 
Peace (1918) aryd Fyfe, Submarine Warfare, Past and Present (2nd ed. 1904). 

"The way in which Germany used her submarines in the very earliest stages of 
the war showed that she had little or no idea as to the immense power of the weapon 
lying in her hands." Gibson & Prendergast, The German Submarine War 1914-1918 
350 (1931). 

9 Nimitz, "Military Value and Tactics of Modern Submarines," 38 Nav. Inst. Proc. 
1193 (1912). It may be noted that the same officer who recommended use against 
warships served as Commander in Chief of the U.S. Pacific Fleet during World War 
II when U.S. Navy submarines were used primarily against Japanese merchant ships. 



the prenuclear submarine was its dependence upon two separate pro- 
pulsion systems, one for use on the surface and the other for use sub- 
merged. 10 A wide variety of surface propulsion systems were employed 
until the development of the diesel engine which shortly became the stand- 
ard for surface propulsion. The dual-powered submarine was essentially 
the surface torpedo boat conjoined with a limited submergence capability. 
Its operational range and its speed on the surface were considerably greater 
than its range and speed submerged. Storage batteries were uniformly 
employed for underwater propulsion and this resulted in drastically limited 
submerged speeds and endurance. The German oceangoing submarine of 
the First World War had an endurance of from twenty-four to thirty-two 
hours underwater at a speed of about five knots. If the submarine operated 
for even a very short period of time at maximum underwater speed it 
greatly reduced its underwater range. The oceangoing submarine of World 
War I typically had a cruising range of from 5,000 to 8,000 miles on the 
surface. During both World Wars submarines were armed with torpedoes, 
mines, and guns. The guns, of course, could only be used on the surface. 

There was only a small improvement effected in underwater speeds 
between the First and Second World Wars. During the First World War 
most oceangoing submarines had a maximum surface speed of from ten 
to fourteen knots. During the Second World War the maximum surface 
speeds were raised to perhaps seventeen to twenty knots. These speeds were 
low in comparison with the maximum speed of destroyers which was 
twenty-eight to thirty knots during World War I and at least a few knots 
higher during World War II. 

In both World Wars the dual-powered submarine required relatively 
long periods between sea operations for repairs and overhaul. In addition, 
submarines typically required a voyage of some duration before reaching 
the area of actual operations. Consequently, the number of submarines 
engaged in war operations at a particular time was no more than a frac- 
tion of the total submarines in a particular navy. 

A technical listing of submarine types has included arctic, aircraft car- 
rier, cargo, midget, and minelayer among others. 11 Submarine merchant 
vessels, best known through the German Deutschland which cruised to the 



10 The technical information in the present subsection is based upon Kuenne 9-3 1 
and upon the naval encyclopedias, Jane's Fighting Ships (Blackman ed.; annual) 
and Les Flottes de Combat (Le Masson ed.; biennial). 

11 Committee on Undersea Warfare of the U.S. National Academy of Sciences, An 
Annotated Bibliography of Submarine Technical Literature, 1557-1953 96-104 
(1954). 



United States carrying cargo during the First World War, 12 are not 
usually armed. 13 

b. COMBAT CAPABILITIES 

The characteristics of submarines imposed limitations upon their 
combat capabilities. At the beginning of the First World War the German 
Navy contemplated use of submarines against warships rather than against 
merchant ships. 14 In spite of some success in sinking surface warships, 15 
the submarine was soon redirected toward merchant shipping. In the First 
World War, German submarines sank more than 11 million tons of Allied 
and neutral merchant shipping. 16 It was well known that the German 
submarine war brought the United Kingdom to the brink of defeat before 
the United States entered the First World War. 17 Finally, the use of con- 
voys to protect merchant shipping combined with drastic and compre- 
hensive antisubmarine measures brought about the Allied victory. 18 

Admiral Jellicoe has described the antisubmarine effort as it existed in 
November 1917 when he was the First Sea Lord of the British Admiralty. 
On the German side were some 178 submarines. On the British side 
the forces in use to overcome these 178 submarines included approxi- 
mately : 

277 Destroyers 49 Yachts 

30 Sloops 849 Trawlers 

44 "P" Boats 867 Drifters 

338 Motor Launches 24 Paddle Mine-sweepers 

65 Submarines 50 Airships 

68 Coastal Motor-boats 194 Air-craft 

77 Decoy ships 



12 7 Hackworth 459-61. See also Duncan, "Deutschland — Merchant Submarine," 
91 Nav. Inst. Proc. No- 4, 68 (1965) ; Hershey, "The Deutschland;' 9 A.J.I.L. 852 
(1916). 

The use of nuclear submarines as commercial tankers is recommended in Gallatin, 
"The Future of Nuclear- Powered Submarines," 84 Nav. Inst. Proc. No. 6, 23 (1958). 

13 Twenty-seven submarines or submersibles for undersea research purposes are 
described in U.S. Interagency Committee on Oceanography, Undersea Vehicles for 
Oceanography 21 (1965). 

14 Spindler, "The Value of the Submarine in Naval Warfare," 52 Nav. Inst. Proc. 
835, 837 (1926). 

15 The best known example is the sinking of the British cruisers Aboukir, Hogue, 
and Cressy on Sept. 22, 1914 by the German U-9. Gibson & Prendergast, The Ger- 
man Submarine War 1914-1918 7-10 (1931). 

"Anderson, "The Protection of Commerce in War," 78 Nav. Inst. Proc. 881, 
883 (1952). 

17 Jellicoe, The Crisis of the Naval War (1920) ; Sims, The Victory at Sea (1920). 

18 Ibid. 



In addition to this great fleet of vessels engaged in the war against 
the 178 German submarines we laid over 10,000 mines in the last three 
months of 1917 in the Heligoland Bight and the Straits of Dover, sole- 
ly for the purpose of destroying some of these submarines, whilst in 
1918, in addition to further very extensive mining in the Heligoland 
Bight and Straits of Dover, some 100,000 mines were laid in the North 
Sea Barrage. Can any better proof be afforded of the difficulty of anti- 
submarines warfare, than is given by these figures? They show clearly 
the immense effect on Naval warfare, and Naval policy, of the in- 
troduction of a completely new offensive weapon. 19 

The decoy ships referred to by Admiral Jellicoe are the Q-ships of fame 
or infamy depending upon the acceptance of the British or German view- 
point. 20 These ships appeared to be innocent merchantmen but were 
actually heavily armed warships manned by Royal Navy personnel. Their 
function was to lure German submarines to the surface and to destruction. 
When a submarine attempted to carry out the time-honored procedures 
of visit and search it became a nearly helpless object of attack. 21 

Submarine warfare cannot be considered apart from what has been, 
thus far, the submarine's principal object of attack, the merchant ship. 
The solitary merchantman, unarmed and unescorted, was no match for 
the submerged submarine assuming, of course, that it was not actually a 
Q-ship. A convoy consisting of merchant ships and an adequate group of 
naval escort vessels was usually more than a match for a single submarine. 22 
In addition, a merchant ship could seriously damage or sink a submarine 
by ramming. 

In the Second World War, German submarines sank more than 23 
million tons of Allied and neutral merchant shipping. 23 In the Pacific war 
United States submarines sank approximately sixty percentum of the 9 
million tons of Japanese merchant shipping which were destroyed by 
the end of the war. 24 It seems clear that the destruction of the Japanese 
merchant marine was a major factor in obtaining victory in the Pacific. 
United States submarines were also used in support of fleet operations and 
against Japanese warships. 25 



19 Jellicoe, The Submarine Peril: The Admiralty Policy in 1917 183 (1934). 

20 British views appear in Campbell, My Mystery Ships (1928) and Chatterton, 
"Q" Ships and their Story (1922). The German view appears in Tzschirner, Die 
Baralong-Bestialitat (1918). 

21 See generally Potter & Nimitz 462. 

29 Potter & Nimitz 466-70; Cooke, "The Atlantic Convoys," 76 Nau. Inst. Proc. 
863 (1950). 

33 Anderson, supra note 16 at 881. 

24 Id. at 887. 

^Forrestel, Admiral Raymond A. Spruance, USN: A Study in Command 79, 135- 
42 (1966); Roscoe, United States Submarine Operations in World War II 361-72 
(Ch. 25 entitled "Submarine Support of Fleet Operations") (1949). 



Japanese submarines enjoyed no comparable success in attacking Allied 
merchant shipping. One reason for the success of United States submarines 
directed at Japanese merchant shipping was that the Japanese Navy never 
gave a major role to the protection of merchant shipping or to antisub- 
marine measures. 26 Such activities were considered contrary to the Japanese 
Navy doctrine of the offensive which regarded United States warships as 
its most important targets. 27 In spite of a few notable successes the Japa- 
nese submarines were not able to combat adequately the U.S. Navy surface 
warships. In addition, there is considerable evidence that the Japanese 
submarine power was dissipated in militarily inefficient operations. Pro- 
fessor Kuenne has summarized : 

[Japanese] submarine resources were squandered on futile searches for 
Allied men-of-war, on quixotic land bombardments, and on hopeless 
supply operations for lost garrisons. These employments are evidence 
of a total bankruptcy of strategic doctrine concerning the submarine, 
and the record of the Japanese in these respects constitutes the most 
shameful avoidable waste of a military resource in World War II. 28 
Nonpowered cargo submarines or submersibles which are towed by 
powered submarines may be regarded as a future method of sea transport 
both in peace and in war. The Japanese built such submarines and em- 
ployed them in the Second World War in attempting to supply isolated 
and bypassed Japanese Army garrisons. 29 In addition, it is interesting to 
note that the Japanese Army, probably because of a lack of interservice 
cooperation and confidence, built and operated submarines which were 
manned by army personnel and used to supply Japanese Army garrisons. 



30 



2. The Nuclear-Powered Submarine 

a. PERFORMANCE CHARACTERISTICS 

The contemporary nuclear-powered and nuclear-armed submarines 



38 Atsushi Oi, "Why Japan's Anti-submarine Warfare Failed," 78 Nav. Inst. Proc. 
587 (1952). 

27 Hashimoto, Sunk: The Story of the Japanese Submarine Fleet, 1941-1945 62 
(1954). 

^Kuenne 4, 5. 

29 Such a submarine is described briefly in Bulkley, At Close Quarters: PT Boats 
in the United States Navy 216-17 (1962). Technical description of this type of ves- 
sel termed "cargo carrying pipe" appears in Shizuo Fukui (ex-Constructor Lieut. 
Comdr., Japanese Navy), Japanese Naval Vessels at the End of War 205, 206 
(1947, published in cooperation with U.S. occupation authorities in Japan) (copy 
in Mahan Library, U.S. Naval War College, Newport, R.I.). 

30 U.S. Strategic Bombing Survey (Pacific) Naval Analysis Division, 2 Interroga- 
tions of Japanese Officials — Submarine Warfare OPNAV-P-03-100, Nav No. 72, 
USSBS No. 366 (10 Oct. 1945). Technical descriptions of the Army "transport 
submarines" appear in Fukui, op. cit. supra note 29 at 217. 



are very different warships from their predecessor submarines of both 
World Wars. 31 The use of a single high-power system for both submerged 
and surface cruising has eliminated the limitations of a dual-powered 
system. Perhaps the most striking feature of nuclear power is that the 
submarine is now truly a submersible. When it comes to the surface it 
does so because of tactical considerations and not because of inability to 
cruise submerged for great distances. Its hull is streamlined and designed 
for submerged rather than surface cruising. 

The nuclear-powered submarine is one of the fastest warships and has 
the capability of maintaining high speeds for long periods of time. Since 
it is designed for submerged rather than surface cruising it is typically 
capable of a higher underwater than surface speed. In 1955 the Nautilus, 
the first of the United States nuclear submarines, traveled at an average 
submerged speed of sixteen knots maintained for over 1300 miles. The 
Nautilus does not have the streamlined hull designed to increase under- 
water speed which the later nuclear submarines have. Accurate official 
information on contemporary speeds is not available. One civilian authority, 
however, has stated: "Speeds of at least 30 knots submerged are now 
taken for granted, and indeed targets of 50 knots are talked of by some as 
possible in the future." 32 

The increase in the operational range of submarines is even more strik- 
ing than the speeds now obtainable. Using the Nautilus as an example 
again, its "second reactor [core] was pulled and replaced in 1959 during 
routine overhaul after 26 months and steaming 93,000 miles of which 
78,885 was [sic] underwater." 33 The Triton, a newer nuclear submarine, 
"circumnavigated the globe submerged in 1960 for 83 days and 41,500 
miles at an average speed of 18 kts. She refuelled in mid- 1962 after steam- 
ing 110,000 miles." 34 

The newer nuclear submarines operate at great depths. One authority 
has suggested a depth of 900 feet for contemporary submarines. 35 If this 
figure represents a safe operational depth, it is probable that these sub- 
marines could occasionally operate at greater depths on an emergency 
basis. 

The contemporary emphasis on nuclear submarines in the U.S. Navy 
is demonstrated by the existence of sixty nuclear submarines out of a 



31 The technical information in the present subsection is based in substantial part 
upon the following sources: Jane's Fighting Ships 1965-66; Les Flottes de Combat 
1966; and Kuenne 177-92. 

32 Kuenne 180. 

38 Jane's Fighting Ships 1965-66 372. 

M Id. at 370. See Beach, Around the World Submerged (1962). 

35 Kuenne 181. 



8 

total of 140 submarines. 36 The respective figures for the Soviet Navy are 
thirty-five and 390 37 and for the British Navy, two and 42. 38 

b. COMBAT CAPABILITIES 

Nuclear energy has also equipped the nuclear-powered submarine 
with the most awesome and devastating weapons of mass destruction. 
The latest United States fleet ballistic missile submarines each carry six- 
teen Polaris type A— 3 missiles, each of which can project a warhead of 
approximately .75 megatons for a distance of approximately 2800 miles. 39 
These missiles are regarded as being capable of high precision aiming 
considering the distances involved. In summary, a single fleet ballistic 
missile submarine carries approximately twelve megatons of TNT explo- 
sive equivalent. This is greater than the explosive equivalent of the entire 
Allied aerial bombing operations during the Second World War. 40 These 
basic energy weapons with their rapid missile delivery systems will be 
appraised juridically in Chapter V concerning weapons of attack. 

The fleet ballistic missile submarine with its strategic bombardment 
function comprises one of the two principal types of nuclear submarines. 
The other is the nuclear attack submarine and it apparently has approxi- 
mately the same functions of attack against merchant ships and warships 
as did the traditional submarine of the two World Wars. 41 Both types 
have weapons which are designed for submerged firing and the deck guns, 
typical of the earlier submarines, are not mounted on the nuclear ones. 
The nuclear attack submarine is equipped with nuclear weapons of the 
type usually described as tactical. These weapons include very high-speed 
homing torpedoes which may be directed at either surface ships or other 
submarines. 42 They also include an antisubmarine rocket, "SUBROC," 
which is launched from a submerged submarine's torpedo tube and 
operates underwater-to-air-to-underwater. 43 In short, the offensive capa- 
bility of the new attack submarine is vastly greater than that of its prede- 
cessors during the World Wars. 

The nonnuclear submarine was readily outclassed in speed by destroyers 
and other surface warships as well as by some merchant ships. In contrast, 
the nuclear submarine may well be able to outrun its most speedy surface 
opponents whether it is attempting to take defensive and evasive action 
or is attacking surface warships. Historically, the traditional submarine 



'"lane's Fighting Ships 1965-66 460. 

37 Ibid. 

38 Ibid. The respective figures for France are zero and nineteen. Ibid. 
^Kuenne 178. 

40 Ibid. 

41 Kuenne 188-91 and passim. 

^Martell, "Defending the Sea," Industrial Research 95, 98 (March 1966) 
43 Ibid. 



has not usually been a militarily effective combatant unit employed 
against modern surface warships. The offensive capabilities of the new 
attack submarine may well have changed this situation so that surface 
warships become principal objects of attack. 44 

There can be no doubt but that the combat capabilities of antisub- 
marine warfare have also been greatly increased since the end of the 
Second World War. 45 It would be hazardous, nevertheless, to assume that 
antisubmarine warfare has kept pace with submarine warfare. It must be 
recalled that in two World Wars the dual-powered German submarines 
were almost successful in defeating all antisubmarine efforts. 46 One pro- 
fessional observer has recently concluded that "the submarine has opened 
a yawning gap between its own capabilities and those of the ASW forces." 47 
In addition, the convoy system which was one of the chief means of 
defeating the traditional submarines was based upon a concentration of 
shipping. One may wonder to what extent concentration, rather than 
dispersal, involves unacceptable risks in an era of tactical and strategic 
nuclear weapons. 

3. Future Submarine Warfare 

There is, of course, no reason to believe that contemporary attack 
and fleet ballistic missile submarines represent the final- development of 
submarine warfare or warfare submerged. 48 Without indicating all of the 
possibilities, it has been suggested that the future "ocean-based missile 
force could conceivably take some totally new direction of development 
in the future which would hopefully combine many of the better charac- 
teristics of the land-based force." 49 

The same report continues: 

Such developments may, for example, take the form of missiles of 

Polaris' size or even considerably larger placed on relatively shallow 



44 Kuenne 189. 

45 Weakley, "Antisubmarine Warfare — Where Do We Stand?" Naval Review 1965 
2 (1964). 

46 The antisubmarine war against Germany in World War II is described in 1 
Morison, History of United States Naval Operations in World War II: The Battle 
of the Atlantic (1947) and United Kingdom Gov't, The Battle of the Atlantic 
(1946). 

Popular accounts appear in Farago, The Tenth Fleet (1962) and Lewis, The 
Fight for the Sea (1961). Each of these two contains inaccuracies and the latter at 
204 even confuses the civilian and naval heads of the British Navy. 

47 R. H. Smith, Jr., "The Submarine's Long Shadow," 92 Nav. Inst. Proc. No. 3, 
p. 30, 34 (1966). 

48 See generally Grenfell, "The Growing Role of the Submarine," 89 Nav. Inst. 
Proc. No. 1, p. 49 (1963). 

49 Report of the Panel on Oceanography of the President's Science Advisory Com- 
mittee, Effective Use of the Sea 33 (1966). 



10 

underwater barge systems on the Continental Shelf in a way which 
conceals their location and requires the system to move infrequently 
so that the potential of its being tracked by motion-generated noise 
is minimized. In addition one might consider a slightly mobile ocean- 
bottom system which creeps along. 50 

It should not be necessary to emphasize the common interest of all states 
and all people in abolishing the weapons of mass destruction through 
effective international control. Until this is done, it is the comparatively 
modest function of the laws of war to limit their use, whenever possible, 
in order to protect humanitarian values. 

B. PRINCIPAL CLAIMS CATEGORIES IN SUBMARINE 
WARFARE 

The factual process of coercion gives rise to claims and counterclaims 
concerning the lawfulness or unlawfulness of various methods and tech- 
niques of naval warfare. These claims and counterclaims are advanced 
by the neutral states as well as by the belligerent ones. They constitute the 
particular juridical controversies which are resolved by the decision-makers 
through the application of the legal doctrines. 

It is helpful for purposes of systematic organization and appraisal to 
identify and group together each of the major claims categories. Each 
such category comprises a closely related group of claims and counter- 
claims which raise significant juridical issues. In submarine warfare there 
are four major categories of claims. 

1. Claims Concerning Combatants 

Only individuals who have lawful combatant status are entitled to 
exercise violence during war or hostilities. Such individuals, upon capture 
by the enemy, are to be accorded the standard of treatment prescribed 
by international law for prisoners of war. Unlawful combatants who are 
captured enjoy considerably less protection under law. 

In naval warfare the basic combatant unit is typically a vessel or air- 
craft which is manned by a group of individuals. A warship or a naval 
aircraft is a lawful combatant unit since it satisfies the dual legal require- 
ments of public authorization and control. The lawful combatant status 
of the crew members is associated with that of their warship or aircraft. 
The submarine, unlike other warships, has been the subject of controversy 
concerning its combatant status. The principal claim has been that it 



50 Ibid. See id. at 30-40 concerning oceanography, national security and submarine 
or submerged weapons. See also Craven, "Sea Power and the Sea Bed," 92 Nav. 
Inst. Proc. No. 4, p. 36 (1966) ; Alexander, "Oceanography and Future Naval War- 
fare," 89 Nav. Inst. Proc. No. 6, p. 66 (1963). 



11 

should be denied lawful combatant status. The countering claim is that 
the submarine has the same combatant status as any other warship. 51 

2. Claims Concerning Areas of Belligerent Operation 

The high seas are employed in time of war for the conduct of sub- 
marine warfare. These are the same areas which are employed by neutral 
states for interneutral trade as well as for trade with one or more of the 
belligerents. These conflicting uses give rise to claims and counterclaims 
between belligerents and neutral states. The typical belligerent claim is to 
establish a submarine operational area from which neutral merchant 
shipping may be legally excluded with the sanction of sinking without 
further warning if such shipping persists in entering the area. This claim 
is used by the belligerent to reach the enemy belligerent through the 
neutral states which supply the enemy belligerent and so support its war 
economy. The typical neutral counterclaim is that neutral merchant ships 
have the legal right to use the high seas without being subjected to this 
type of belligerent action. 

There are also interbelligerent claims concerning submarine operational 
areas. The typical claim is to employ the operational area against the 
enemy belligerent as a distinctive method of submarine warfare. 52 

3. Claims Concerning Objects and Methods of Belligerent 
Attack 

Claims and counterclaims concerning the lawfulness of particular 
objects as targets of attack and claims and counterclaims concerning 
methods of attack are so closely related that they may be grouped con- 
veniently in one category. A typical belligerent claim is that submarines 
may lawfully sink enemy merchant ships without warning. The countering 
claim is that enemy merchant ships may not be sunk lawfully unless the 
crew and passengers are assured a place of safety. 

Claims concerning objects and methods of attack in naval warfare also 
include the issue of the applicability to submarines of the generally recog- 
nized legal duty to search for and rescue the survivors after each naval 
engagement. The claim is that submarines have the same legal obligations 
as other warships in this respect. The countering claim is that submarines 
simply do not have adequate space to carry survivors and, consequently, 
the obligation to rescue survivors is inapplicable. 53 

4. Claims Concerning Weapons of Belligerent Attack 

The crucial importance of claims and counterclaims concerning the 



61 Claims concerning combatants are appraised in Chapter II. 

63 Claims concerning areas of operation are appraised in Chapter III. 

53 Claims concerning objects and methods afe appraised in Chapter IV. 



12 

lawfulness of weapons is demonstrated by the greatly increased efficiency 
of the traditional weapons combined with the development of contem- 
porary weapons of mass destruction. The awesome characteristics of these 
latter weapons are far beyond that of the traditional weapons and tradi- 
tional experience. It has been pointed out above that contemporary sub- 
marines possess both a tactical and strategic nuclear capability. 

The most general claim in this category is that all militarily efficient 
weapons are lawful. The countering claim is that particular weapons are 
unlawful because they create suffering and injury disproportionate to their 
military utility. 54 

C. THE LAWS OF WAR: SOURCES, PRINCIPLES, AND 
SANCTIONS 

It is well known that war is accompanied by the destruction of human 
and material values. A central objective of the laws of war is to reduce the 
destructiveness involved in military operations by providing at least a 
minimum standard of protection to individuals. The individuals who are 
so protected comprise noncombatants and combatants including the 
wounded, the shipwrecked, and prisoners of war.' 



55 



1. Sources of Decision 

The decision-makers of international law, during both peace and war, 
in the present decentralized organization of the world community, include 
the officials of various international public organizations. The most impor- 
tant contemporary international law decision-makers, however, are the offi- 
cials of national states. These same national officials also act upon occasion 
as claimants concerning the exercise of coercion on behalf of their nation- 
states. This duality of function permits, and indeed requires, reciprocity to 
operate as a sanction which promotes the common self-interest of the 
community of states in all rational claims and decisions. 56 Among the 
national decision-makers of the international laws of war is the military 
officer. In certain circumstances the military or naval commander must 
determine the legality of his own proposed military measures and of the 
measures employed by the enemy. 57 



54 Claims concerning weapons are appraised in Chapter V. 

65 Relevant conventional and customary law authorities are cited infra in the 
present section. 

56 See McDougal & Feliciano 40. 

57 The Law of Naval Warfare section 310(b) states that: 

[A] subordinate commander may, on his own initiative, order appropriate reprisals, 
but only after as careful an inquiry into the alleged offense as circumstances 
permit. Hasty or ill-considered action may be found subsequently to have been 
unjustified and may subject the officer himself to punishment for violation of the 
laws of war. 

There is a similar provision in The Law of Land Warfare paragraph 497(d). 



13 

The decision-makers are authorized to resort to the legal doctrines of 
both conventional and customary law in making particular decisions. The 
function of these doctrines is not, of course, to automatically direct the 
decision-makers to a predetermined decision. 58 It is rather to direct their 
attention to the significant common values of the community of states 
which are protected by the laws of war. Since the doctrines are to be 
considered in varying contexts there must be careful factual analysis as a 
preliminary to equally careful ascertainment of doctrinal relevance and 
applicability. In addition, appropriate weight must be given to the chang- 
ing conditions of war including its changing technology. So conceived, the 
legal doctrines may be utilized to enhance rational and just decisions. 
Illustration of some of the significant factors which should be consid- 
ered in decision is provided by the judgment of a United States Military 
Tribunal in The Flick Trial.™ 

They [the provisions of Hague Convention IV of 1907] were written 
in a day when armies travelled on foot, in horse-drawn vehicles and 
on railroad trains; the automobile was in its Ford Model T stage. Use 
of the airplane as an instrument of war was merely a dream. The 
atomic bomb was beyond the realms of imagination. Concentration 
of industry into huge organisations transcending national boundaries 
had barely begun. Blockades were the principal means of 'economic 
warfare.' 'Total warfare' only became a reality in the recent conflict. 
These developments make plain the necessity of appraising the con- 
duct of defendants with relation to the circumstances and conditions 
of their environment. Guilt, or the extent thereof, may not be deter- 
mined theoretically or abstractly. Reasonable and practical standards 
must be considered. 

a. CONVENTIONAL LAW 

The conventional or treaty laws of war, based upon the express 
agreement of states, 60 are properly associated with international confer- 
ences, such as those at the Hague and in Geneva. The latest significant 
example of lawmaking concerning war by international convention are 
the four Geneva Conventions of 1949 for the Protection of War Victims. 61 



58 Contrast Stone, Aggression and World Order 10-11 and passim (1958) which 
is criticized in McDougal & Feliciano 151-55. 

59 9 Reps. U.N. Comm. 1, 23 (1947). 

60 The Soviet Union emphasizes express agreement over other sources. Ramundo, 
The (Soviet) Socialist Theory of International Law 1-2, 27-28, 57-58 (George 
Washington Univ. Inst, for Sino-Soviet Studies No. 1, 1964). 

81 Geneva Convention for the Amelioration of the Condition of the Wounded and 
Sick in Armed Forces in the Field, 6 U.S.T. & O.I.A. 3114 (1956), T.I.A.S. 3362; 
Geneva Convention for the Amelioration of the Condition of Wounded, Sick and 
Shipwrecked Members of Armed Forces at Sea, 6 U.S.T. & O.I.A. 3217 (1956), 



14 

The detailed rules of these Conventions provide for some substantive im- 
provements over preexisting conventional and customary law concerning 
the same subjects. It is unfortunate, however, that the prescription of law 
by explicit agreement has rarely achieved more than a restatement or 
codification of the existing customary consensus on the particular subject. 
The national negotiators meeting at international conferences in time of 
peace must be concerned about the future security of their respective 
states and are understandably hesitant to recommend rules which are 
unlikely to meet the test of a future war. 

The principal international conventions or agreements which provide 
rules and principles conerning the conduct of war at sea are : 

Hague Convention VIII Relative to the Laying of Automatic Sub- 
marine Contact Mines (1907) 62 

Hague Convention IX Respecting Bombardment by Naval Forces 

in Time of War (1907) 63 

Hague Convention XI Relative to Certain Restrictions with Regard 

to the Exercise of the Right of Capture in Naval War (1907) 64 
Hague Convention XIII Concerning the Rights and Duties of 

Neutral Powers in Naval War (1907) 65 

The Geneva Convention for the Amelioration of the Condition of 

Wounded, Sick and Shipwrecked Members of the Armed Forces at 

Sea (1949) 66 

Article 22 of the Treaty for the Limitation and Reduction of Naval 

Armament (London, 1930) 67 

Article 22 of the London Naval Treaty is the only express agreement 
directed to the regulation of submarine warfare. It is set forth and inter- 
preted in Chapters III and IV of the present study. Article 23 of the 
same treaty provides that "Part IV [art. 22] shall remain in force without 
limit of time." Prior to the expiration of the other provisions of the Treaty 
the parties to it invited all other states to agree to the article 22 rules 
through the Proces- Verbal Relating to the Rules of Submarine Warfare 
Set Forth in Part IV of the Treaty of London (of 1930) (November 6, 
1936). 68 The rules, consequently, are now in effect between forty-eight 



T.I.A.S. 3363; Geneva Convention Relative to the Treatment of Prisoners of War, 6 
U.S.T. & O.I.A. 3316 (1956), T.I.A.S. 3364; Geneva Convention Relative to the 
Protection of Civilian Persons in Time of War, 6 U.S.T. & O.I.A. 3516 (1956), 
T.I.A.S. 3365. 

62 36 Stat. 2332 (1910), T.S. 541. 

63 36 Stat. 2351 (1910), T.S. 542. 

64 36 Stat. 2396 (1910), T.S. 544. 

65 36 Stat. 2415 (1910), T.S. 545. 

M 6 U.S.T. & O.I.A. 3217 (1956), T.I.A.S. 3363. 
67 46 Stat. 2858 (1930), T.S. 830. 
"31 A.JJ.L.Supp. 137 (1937). 



states, including the principal naval powers, and the Holy See. 



15 

69 



b. CUSTOMARY LAW 



The pragmatic case-by-case development of the customary laws of 
war is, of course, a continuous process only in time of war or hostilities. 
This implicit agreement of states is, nevertheless, more comprehensive in 
doctrinal content and more effective than express conventional agreement 
in the development of the laws of war. In a fundamental sense it may be 
regarded as the accumulated juridical learning concerning the subject. 
Customary international law authorizes decision-makers to achieve con- 
temporaneously effective and socially responsive decision by the rational 
evaluation of past authoritative experience. Thus, the inherited doctrines 
may be adapted to the needs of legal control in an era of rapidly changing 
technology or, in the alternative, be allowed to lapse and expire through 
disuse. In these respects the customary laws of war are similar to the 
Anglo-American customary common law. The laws of war tend to em- 
phasize experience over logic 70 and, again like the common law, develop 
upon the basis of legislative or policy factors: "considerations of what is 
expedient for the community concerned." 71 A view of the relevant sources 
of law and of change in the customary laws of war is reflected in the 
Judgment of the International Military Tribunal at Nuremberg: 

The law of war is to be found not only in treaties but in the customs 
and practices of states which gradually obtained universal recognition, 
and from the general principles of justice applied by jurists and prac- 
ticed by military courts. This law is not static, but continual adapta- 
tion follows the needs of a changing world. 72 

The judgment of the United States Supreme Court in The Paquete 
Habana 73 provides illustration of the ascertainment and application of 
customary law to naval war. Coastal fishing boats operating from Havana, 
which were not participating in the war, had been captured by U.S. Navy 
vessels on blockade duty during the Spanish-American War. The issue 
was whether or not such craft could be captured and condemned. The 
Court responded negatively and stated: 



69 The parties listed in Dept. of State, Treaties in Force 292 (1966) include the 
major naval powers of World War II: Canada, France, Germany, Italy, Japan, 
Soviet Union, United Kingdom, and United States. Other parties include Nepal, 
Saudi Arabia and Switzerland. 

70 Holmes, The Common Law 1 (1881, reprint 1938). 

71 Id. at 35. See Cardozo, The Nature of the Judicial Process 112-41 (1921). The 
same considerations are developed in constitutional law in Rostow, The Sovereign 
Prerogative: The Supreme Court and the Quest for Law 3-44 and passim (1962). 

72 1 I.M.T. 221. 

78 175 U.S. 677 (1900). 



16 

By an ancient usage among civilized nations, beginning centuries 
ago, and gradually ripening into a rule of international law, coast 
fishing vessels, pursuing their vocation of catching and bringing in 
fresh fish, have been recognized as exempt, with their cargoes and 
crews, from capture as prize of war. 74 
The doctrinal holding of the immunity of coastal fishing boats which do 
not participate in the war or hostilities was based entirely upon the cus- 
tomary international law since it was not set out in any applicable inter- 
national agreement or municipal regulation of the United States. The case 
also illustrates a function of the laws of war: humanitarianism will be ad- 
vanced by the protection of noncombatants and their property when it is 
consistent with the maintenance of military efficiency. 

2. Basic Principles 

The basic principles of the laws of war usually refer to military 
necessity and humanity. The principle of chivalry is sometimes added even 
though it appears to be only a relic of medieval times when combat be- 
tween mounted warriors of high social status was regulated by formalistic 
rules. 75 The principle of military necessity has frequently been formulated 
in broad and open-ended terms. For example, Oppenheim-Lauterpacht 
describe it as: 

[T]he principle that a belligerent is justified in applying any amount 
and any kind of force which is necessary for the realisation of the 
purpose of war — namely, the overpowering of the opponent. 76 
The quoted formulation and similar ones are so comprehensive as to 
permit great and unreasonable amounts and types of force to be legally 
justified. If such a statement of the principle were actually applied the 
result would be to sweep away the substantive restrictions of the laws of 
war. A more restrictive formulation of the principle is clearly desirable. 
One is set forth in the Law of Naval Warfare. 

The principle of military necessity permits a belligerent to apply only 
that degree and kind of regulated force, not otherwise prohibited by 
the laws of war, required for the partial or complete submission of 



74 Id. at 686. 

75 Spaight 110-12 recounts incidents of chivalry between airmen in World War I. 
He also recounts the "change of spirit" in World War II. Id. at 118-19. 

Even in medieval times chivalry was inapplicable to civilians, peasant foot soldiers, 
and to enemy personnel of different religious identification. See, e.g., Keen, The Laws 
of War in the Late Middle Ages 243 (1965): "Gentlemen prisoners were usually 
treated well, and allowed to go free on parole. . . . But the story was different in the 
case of the noncombatant. The civilians, and above all the humble, suffered untold 
hardships in war." 

76 Oppenheim-Lauterpacht 227. 



17 

the enemy with the least possible expenditure of time, life, and physical 

resources. 77 
This formulation makes it clear that the principle is subject to the express 
prohibitions of the laws of war. Military necessity should be regarded as 
legalizing only that destruction which is necessary to the prompt achieve- 
ment of lawful military objectives. More specifically, military necessity only 
justifies destruction which is both relevant and proportionate. Such destruc- 
tion must be relevant to the attainment of lawful military objectives. It 
must also be proportionate in the sense of a reasonable relation between 
the amount of the destruction carried out and the military importance of 
the object of attack. Based upon past experience, the requirements as 
applied in actual war or hostilities are only that the irrelevance and dis- 
proportionality of the destruction effected must not be great. 78 

With this interpretation placed upon military necessity there remains 
a pervasive ambiguity in the conception of "lawful miltary objectives." 
The determination of the lawfulness of particular objects of attack in 
submarine warfare is a central task of Chapter IV of the present study. 

The principle of humanity is formulated as follows in the Law of Naval 
Warfare: 

The principle of humanity prohibits the employment of any kind 

or degree of force not necessary for the purpose of the war, i.e., for 

the partial or complete submission of the enemy with the least possible 

expenditure of time, life, and physical resources. 79 
On first impression the formulation of the humanity principle appears to be 
an obvious tautology since it only prohibits the use of force which is not 
permitted under the principle of military necessity. In addition, the phrase, 
"the purpose of the war," is as open-ended and ambiguous as is the con- 
ception of "lawful military objectives." The principle of humanity, con- 
sequently, appears no more precise than that of military necessity. 

Both basic principles, nevertheless, protect important value interests of 
the world community. Until war and hostilities are abolished, the basic 
principles reflect the interest of states in conducting war or hostilities (at 
least for defensive purposes) , but in conducting them with the least possible 
destruction of human and material values. 80 It is wanton and unreasonable 
destruction which is made illegal by the principles of military necessity 
and humanity. 

The application of the two basic principles presents little difficulty in 
clear-cut factual situations. For example, it should be readily apparent that 



77 Law of Naval Warfare section 220(a) (tootnotes omitted). 

78 Compare the textual formulations with those appearing in McDougal & Feliciano 
524-28 and in O'Brien, "Legitimate Military Necessity in Nuclear War," 2 World 
Polity 35 at 48-57 (1960). 

79 Law of Naval Warfare section 220(b) (footnotes omitted). 
. w See McDougal & Feliciano 522-23. 



18 

it is legally permissible under the principles for submarines to sink without 
warning those enemy merchant ships which are armed and convoyed by 
the naval forces of the enemy belligerent. It should be equally apparent 
that it is illegal under the principles to kill the helpless survivors of the 
same merchant ships. 81 

In the many difficult and complex factual situations which arise the 
decision-maker may be aided by other and more specific legal principles. 
Whether there are other relevant principles or not, there is no substitute 
for careful factual analysis in each case combined with insight concerning 
the values to be protected by each of the basic principles. Illustration of 
the considerations which are involved in a careful juridical appraisal is 
provided by a United States Military Tribunal in United States v. List: 
Military necessity has been invoked by the defendants as justifying 
the killing of innocent members of the population and the destruction 
of villages and towns in the occupied territory. Military necessity per- 
mits a belligerent, subject to the laws of war, to apply any amount 
and kind of force to compel the complete submission of the enemy 
with the least possible expenditure of time, life, and money. In general, 
it sanctions measures by an occupant necessary to protect the safety 
of his forces and to faciliate the success of his operations. It permits 
the destruction of life of armed enemies and other persons whose de- 
struction is incidentally unavoidable by the armed conflicts of the war; 
it allows the capturing of armed enemies and others of peculiar dan- 
ger, but it does not permit the killing of innocent inhabitants for pur- 
poses of revenge or the satisfaction of a lust to kill. The destruction 
of property to be lawful must be imperatively demanded by the nec- 
cessities of war. Destruction as an end in itself is a violation of inter- 
national law. There must be some reasonable connection between the 
destruction of property and the overcoming of the enemy forces. It 
is lawful to destroy railways, lines of communications or any other 
property that might be utilized by the enemy. Private homes and 
churches even may be destroyed if necessary for military operations. 
It does not admit the wanton devastation of a district or the willful 
infliction of suffering upon its inhabitants for the sake of suffering 
alone. 82 

Although stated in terms of military necessity, it may be noted that the 
quoted analysis is entirely consistent with the principle of humanity. In a 
superficial analysis the two principles may appear to be opposites. Never- 
theless, the application of either principle as if the other did not exist 



81 The textual statement may be buttressed in other terms than military necessity 
and humanity. The killing of such survivors could be termed simply "murder on the 
high seas." 

83 11 Trials of War Crims. 757 at 1253-54. 



19 

would result in unbalanced decision. It is essential to apply each principle 
in the light of the other if the common interests of states are to be honored. 
From this perspective, each principle may be usefully conceived as merely 
an element of a larger composite principle which comprises both military 
necessity and humanity. M At the very least, the complementary character 
of the two traditional principles should be recognized and stressed in order 
to promote just decisions. 

3. Sanctions 

Laws of war of ideal doctrinal content would emphasize the principle 
of humanity over other principles. Such laws of war without enforcement 
would be less effective in protecting human values than laws in which the 
doctrinal content is frankly recognized as a compromise between humani- 
tarianism and military necessity and which have at least a measure of 
enforcement. To achieve effectiveness it is necessary to adapt precise nine- 
teenth century formulations of legal rules to the realities of modern naval 
warfare while maintaining the basic principles and values in the rules 
rather than to abandon the attempt to regulate naval warfare. 84 It is also 
necessary to recognize that a usable conception of law, whether inter- 
national or municipal, should include at least some element of sanction or 
enforcement. The term "sanction" is here used broadly to refer to any- 
thing which promotes adherence to the law. 85 If there is no possibility of 
enforcement it is illusory to invoke the label of "law." 

Since it is sometimes alleged that the laws of war are not law at all 
in the sense of being susceptible to enforcement, it should be mentioned 
that the sanction of the laws of war is the common conviction of the par- 
ticipants in the war or hostilities that self-interest is advanced by adher- 
ing to the law rather than by violating it. This is, of course, the same as 
the basic sanction for any other body of law whether international or 
municipal. 86 The conception is that the interests of the participants are 
not only mutual but reciprocal as well. It is recognized that the laws of 
war cannot be long sanctioned as to one participant alone. The sanction 
applies to all on the condition of reciprocity in observance. When reci- 
procity in observance breaks down, acts of reprisal may be employed to 
induce observance. 



83 Compare McDougal & Feliciano 530 who state an "overriding conception of 
minimum unnecessary destruction [of values]." 

84 Colombos 786 issues a call to face the "realities of naval warfare" and quotes 
with approval Sir Samuel Evans' view that "precedents handed down from earlier 
days [should be used] as guides to lead and not as shackles to bind." Id. at 787. 

Compare the narrow conception in St. Korowicz, Introduction to International 
Law: Present Conceptions of International Law in Theory and Practise 5 (1959): 
"Retorsion (retaliation), reprisals, and war individually or collectively applied are 
the means by which sanctions are carried out." 
. " See McDougal & Feliciano 53. 



20 

The participants also share an interest in economy in the use of force. 87 
The destruction of values which is unnecessary to obtain military objec- 
tives is obviously uneconomical use of force since it involves the expendi- 
ture of force without a return in net military advantage. In addition, the 
unregulated use of coercion contrary to the laws of war will very likely 
increase the enemy's will to resist and thus will compel the use of a greater 
quantum of coercion than should have been necessary to secure the same 
military objective. It is conceded that the effectiveness of this sanction is 
dependent upon the rationality of the participants in the war or hostilities 
as well as their dedication to humanitarian values. 88 When a pathological 
desire for destruction as an end in itself supplants rational calculations of 
self-interest, there may be a corresponding breakdown in the enforcement 
of the laws of war. 

Reprisals are widely regarded as sanctions to obtain adherence to the 
laws of war. 89 A reprisal measure is an act, otherwise unlawful, which one 
belligerent directs against the enemy belligerent in retaliation for illegal 
acts of warfare by the latter. The object of a reprisal is to obtain adherence 
to the laws of war and consequently when the opposing belligerent termi- 
nates his illegal practice the reprisal should be stopped. Even the possibility 
of future reprisals is regarded as a sanction which deters a belligerent from 
violating the laws of war. 

The Geneva Conventions of 1949 reduce significantly the individuals 
against whom reprisals may be legally directed. 90 The Geneva Sea Conven- 
tion provides: 

Reprisals against the wounded, sick and shipwrecked persons, the 

personnel, the vessels or the equipment protected by the Convention 

are prohibited. 91 

In anticipation of claims appraised in Chapter III, particular techniques 
of submarine warfare have frequently been claimed to be legitimate re- 
prisals in both World Wars. For example, the German claim to establish 
submarine operational areas has been advanced as a legitimate reprisal in 
response to alleged illegalities in the British conduct of naval war. The 
British naval warfare methods were, in turn, based upon alleged German 
illegalities. Both the German submarine operational area and the British 
long-distance blockade were each claimed to be justified as a legitimate 



87 See the text accompanying note 116 infra. 

88 As an example of the enforcement of a part of the international laws of war 
see Wright, "The Value of International Law in Occupied Territory," 39 A.J.I.L. 
775 (1945). 

89 See generally Oppenheim-Lauterpacht 561-65. Concerning reprisals in naval 
warfare see 7 Hackworth 134-56. 

90 See Albrecht, "War Reprisals in the War Crimes Trials and in the Geneva Con- 
ventions of 1949," 47 A.J.I.L. 590, 607-10 (1953). 

91 Art. 47. The protection includes warships' sickbays and their equipment. Art. 28. 



21 

reprisal. If appraisal is limited to their validity as measures of reprisal 
only, it is possible to conclude that the substantive law of naval warfare 
remains unchanged. The persistent and continuing character of these 
naval methods throughout both World Wars, however, may suggest that 
their use reflects a basic change in the customary international law of war. 

Reprisals have been invoked with such frequency in naval warfare that 
they may be regarded as having a legislative function. This function is to 
bring the traditional doctrines up to date so that they apply to the con- 
temporary methods of war. 92 

War crimes trials may be regarded as a deterrent sanction for the laws 
of war. 93 The conception is that the mere possibility of trials after the con- 
clusion of the war may be an effective deterrent. It should not be assumed 
that only military personnel of the vanquished state will be subjected to 
trial. Although the personnel of victorious states are not usually subject 
to war crimes trials under international law, they may be subject to trial 
under municipal law including the military code governing the armed 
forces. The important point is that municipal military codes such as the 
United States Uniform Code of Military Justice 94 prohibit in substance 
the same type of conduct which is prohibited by the international laws of 
war. 

The submarine war conducted by Germany during the Second World 
War is the largest such military operation in history from the standpoint 
of the numbers of submarines and of submarine personnel involved. 95 At 
the conclusion of that war there was one war crimes trial in which Ger- 
man submarine personnel were charged with violation of the laws of war 
in killing the survivors of a sunken ship. This single instance was The 
Peleus Trial 96 in which the defendants were accused of killing survivors 
of a sunken merchant vessel by the use of gunfire and hand grenades. 
There is no record of any other case involving such charges directed at 
German submarine personnel. The fact that this case stands alone may 
be regarded as indicating its aberrational character. 

In the ensuing chapters appraisal will be made of the war crimes trials 



92 See McDougal & Feliciano 675. 

93 See id. at 703-31 and Oppenheim-Lauterpacht 566-88. 
!H 64 Stat. 108 (1950), 10 U.S.G. sections 801-940 (1964). 

95 Roskill 447 under the subheading "German U-Boat Losses" states that 1,162 
German submarines were built and commissioned during the war of which 785 were 
destroyed, 156 surrendered, and the remainder were scuttled. Jane's Fighting Ships 
1944-45 635 under the heading "War Loss Section" states that 781 German sub- 
marines were destroyed. 

' a Trial of Eck, 1 Reps. U.N. Comm. 1. A more complete report of the same case 
including apparently the full trial proceedings appears in the entire first volume of 
Maxwell-Fyfe (ed.), War Crimes Trials. See the description of the facts of the case 
in Langdon, "Live Men Do Tell Tales," 78 Nav. Inst. Proc. 17 (1952). 



22 

involving charges of violations of the laws of naval and submarine war- 
fare. In particular the trial of Admiral Donitz of the German Navy before 
the International Military Tribunal at Nuremberg for violation of the law 
of submarine warfare during the Second War will be appraised. 

In evaluating the war crimes trials conducted by the victorious allies at 
the conclusion of the Second World War, Professor Lauterpacht has 
stated : 

The stature of those tribunals is bound to grow with the passage of 
time and their judgments will be increasingly regarded as a weighty 
contribution to International Law and justice. These judgments — 
perhaps more than anything else — give a complexion of reality to any 
attempt at a scientific exposition of the law of war, which never before 
in history was so widely and so ruthlessly disregarded as in the Second 
World War. In that perspective the occasional criticisms of these 
courts as having been tribunals set up by the victor acting as judge 
in his own cause must be deemed to be of limited importance. 97 
Such an analysis does not, of course, preclude appraisal of the substantive 
accuracy of determinations of law and of findings of fact made by particu- 
lar war crimes tribunals including the International Military Tribunal at 
Nuremberg. 

D. SITUATIONS WHERE THE LAWS OF WAR ARE 
APPLICABLE 

A duly declared war with states as the participants in which all of the 
participants recognize its character as "war" and in which there is no 
issue concerning illegal resort to coercion is the obvious situation where 
the laws of war apply. There are also other less obvious situations where 
these laws apply. 

There can be but little doubt that Germany's role in the Second World 
War was that of a state illegally resorting to coercion by a war of conquest 
and aggression contrary to its obligations under the Pact of Paris of 1 928 98 
renouncing the use of war as an instrument of national policy. If it follows 
from this that every single military act of Germany, including its submarine 
war, is illegal, careful analysis concerning the legality of particular 
aspects of submarine warfare is unnecessary. It would simply be assumed 
that the officers and crew of each German submarine were war criminals 
without regard to whether they complied with the specific legal doctrines 
applicable to naval war or not. Employing the same reasoning, if the 
United States and the United Kingdom are regarded as states legally em- 
ploying coercion, then it would follow that all of the particular features 
of their conduct of submarine warfare would be deemed lawful even 



97 Oppenheim-Lauterpacht, "Preface" v. 

98 "The Kellogg-Briand Pact," 46 Stat. 2343 (1929), T.S. 796. 



23 

though they were substantially the same methods which were used by 
Germany. 

This issue concerning the relation between illegal resort to coercion and 
the applicability of the laws of war was raised in the Trial of List " before 
a United States Military Tribunal at the end of World War II. The 
prosecution argued that since Germany's wars against Greece and Yugo- 
slavia were illegal wars that Germany obtained no legal rights as a belli- 
gerent occupant and that the presence of German troops in those coun- 
tries was unlawful. The Tribunal rejected the argument, stating: 

For the purposes of this discussion, we accept the statement as true 
that the wars against Yugoslavia and Greece were in direct violation 
of the Kellogg-Briand Pact and were therefore criminal in character. 
But it does not follow that every act by the German occupation forces 
against person or property is a crime or that any and every act under- 
taken by the population of the occupied country against the German 
occupation forces thereby became legitimate defense. 100 
Other courts took the same position. It is particularly important that a 
claim by the prosecution which was similar to that made in the Trial of 
List was rejected by the International Military Tribunal at Nuremberg. 101 
The result is that the illegal character of a particular participant's resort 
to coerction does not relieve it from the applicability of the detailed rules 
of the laws of war. The soundness of this position seems clear in view of 
the central role of reciprocity as a sanction for the laws of war. Unless a 
distinction is made between the illegal character of resort to coercion and 
the applicability of the detailed requirements of the law concerning the 
conduct of the coercion, an aggressor state might evade the detailed doc- 
trines by the simple expedient of being the aggressor. If the aggressor state 
were not subject to the law, it might shortly be claimed that the defending 
state was also freed from adherence to the specific doctrines. The result 
could be widespread destruction of human and material values of the kind 
protected by the laws of war. In consequence, if the humanitarian objec- 
tives of the laws of war are to be effectuated, it is necessary that they be 
applied without regard to the question of illegality in the initial resort to 
coercion. 102 Therefore, in spite of the character of the German resort to 
coercion in World War II as well as the documented Nazi murders of 



99 8 Reps. U.N. Comm. 34. 

100 Id. at 59. 

101 



The argument of the French Chief Prosecutor, M. de Menthon, appears in 5 
I.M.T. 387. The International Military Tribunal rejected the argument by necessary 
implication from its entire Judgment. 1 I.M.T. 171-341. 

103 The same conclusion is reached, after some equivocation, by Lauterpacht, "Rules 
of Warfare in an Unlawful War" in Law and Politics in the World Community 89, 
91-99 (Lipsky ed. 1953). 



24 

civilians on land, 103 the German submarine war must be appraised accord- 
ing to the same juridical criteria applied to the United States and the 
United Kingdom submarine operations. By the same reasoning, the Japan- 
ese submarine war must also be appraised by the same criteria. 

Another situation presenting an issue concerning the applicability of the 
laws of war is that involving a war which includes participants other than 
states. For example, it has been stated with respect to collective action by 
the United Nations that this international organization "has a superior le- 
gal and moral position as compared with the other party [presumably a na- 
tional state] to the conflict." 104 From this it has been suggested that the 
United Nations might "forbid use of atomic bombs by a state while reserv- 
ing the right to use them itself." 105 It has also been concluded that: 
[T]he United Nations should not feel bound by all the laws of war, 
but should select such of the laws of war as may seem to fit its pur- 
poses (e.g., prisoners of war, belligerent occupation), adding such 
others as may be needed, and rejecting those which seem incompatible 
with its purposes. 106 
To the extent that the United Nations rejected particular portions of the 
laws of wars, the probable result would be lack of reciprocity and ensuing 
breakdown of the law. If the United Nations picked and chose among 
the laws of war this would seem to be an invitation for the opposing bel- 
ligerents to do the same. During the Korean War, as a matter of fact, the 
United Nations carefully observed the laws of war. 107 This seems a more 
practical way of manifesting "a superior legal and moral position" than 
the quoted alternative. 

If one or more of the participants in war or hostilities is a rebel or in- 
surgent group, there remain, nevertheless, the humanitarian reasons for 
the application of the laws of war. Describing widespread violence as 
"internal" does not mitigate its objective characteristics. In the United 



103 1 I.M.T. 171 at 232-38, 243-53. Attorney-General of the Government of Israel 
v. Adolf, the son of Karl Adolf Eichmann, Criminal Case No. 40/61, Dist. Ct. of 
Jerusalem, Israel, Dec. 11-12, 1961, affirmed Criminal Appeal No. 336/61 Sup. Ct. 
of Israel, May 29, 1962. 

The Eichmann case is cited only concerning the Nazi murders and not concerning 
jurisdictional authority under international law to conduct the trial because of doubts 
concerning the latter. For amplification see Mallison, "The Zionist-Israel Juridical 
Claims to Constitute 'the Jewish people' Nationality Entity and to Confer Member- 
ship in It: Appraisal in Public International Law," 32 Geo. Wash. L. Rev. 983, 
1043-46 (1964). 

104 Report of Committee on Study of Legal Problems of the United Nations, 
"Should the Laws of War Apply to the United Nations Enforcement Action?" 46 
Proc. A.S.I.L. 216, 217 (1952). 

105 Id. at 218. 

106 Id. at 220. 

107 Letter from U.S. Ambassador Warren R. Austin to the Secretary-General of the 
United Nations, July 5, 1951, 25 Dept. of State Bull. 189 (1951). 



25 

States Civil War, a situation of widespread rebellion, the laws of war were 
applied. 108 If they had not been applied and if every single Confederate 
soldier or sailor had been treated as a traitor, the result would probably 
have been much greater destruction of values than actually occurred. 

The Geneva Conventions of 1949 undertake the regulation of violence 
in internal conflicts. The detailed rules of the Conventions are not appli- 
cable as such in civil wars but the Conventions provide that each of the 
participants in an armed conflict "not of an international character" occur- 
ring in the territory of a contracting party must be bound at least by the 
prescribed humanitarian standards. 109 

Finally, the laws of war are applicable in war or hostilities without 
regard to invocation of the label "war" or to the recognition of a state of 
war by the participants. In relevant part the four Geneva Conventions 
provide : 

In addition to the provisions which shall be implemented in peace 
time, the present Convention shall apply to all cases of declared war 
or of any other armed conflict which may arise between two or more 
of the High Contracting Parties, even if the state of war is not recog- 
nized by one of them. 110 
As a matter of drafting, it might have been better to change the last clause 
to read "even if the state of war is not recognized by one or more of them." 
T t is clear, nevertheless, that one of the fundamental purposes of the 
Geneva Conventions is to obtain application of their detailed rules in all 
situations involving the use of international coercion and violence. The 
humanitarian objectives of the laws of war require an equally broad 
application of the customary laws of wars. 

E. LIMITED WAR AND THE EFFECTIVE CONTROL OF INTER- 
NATIONAL COERCION 

Professor Quincy Wright has described the historical functions per- 
formed by war : 

War has been the method actually used for achieving the major 
political changes of the modern world, the building of nation-states, 
the expansion of modern civilization throughout the world, and the 
changing of the dominant interests of that civilization. 111 
The same writer, even in 1942 before the advent of atomic weapons, 
detected a certain modern disenchantment with war : 



108 Professor Francis Lieber was the principal author of U.S. War Dept., Instruc- 
tions for the Government of Armies of the United States in the Field, Gen. Orders 
No. 100 (April 24, 1863). 

109 Art. 3 of each Convention. 

110 Art. 2, paragraph 1 of each Convention. 

111 1 Wright, A Study of War 250 ( 1942) (footnote omitted). 



26 

There is, however, a more widespread opinion than in any other 
period in history that war has not functioned well in the twentieth 
century. From being a generally accepted instrument of statesman- 
ship, deplored by only a few, war has, during the modern period, 
come to be generally recognized as a problem. 112 
The "problem" of preatomic times now involves the issue of survival of 
the human race unless war can be effectively controlled. 113 

In an era of weapons of mass destruction and of rapid missile delivery 
techniques there are sound reasons to consider limited war as the rational 
alternative to unlimited war until it is possible to abolish war altogether. 
Policy makers who are concerned with national self-interest have persua- 
sive inducements to avoid a war of mutual catastropic devastation. This 
is not to say that an unlimited war is impossible since such a war could 
take place by accident or miscalculation. It is only to say that an unlimited 
war involving mass destruction without regard to rational political objec- 
tives does not serve the interests of any of the participants in such a war. 
Limited war has been authoritatively described in these terms: 

A limited war is one in which the belligerents restrict the purposes 
for which they fight to concrete, well-defined objectives that do not 
demand the utmost military effort of which the belligerents are cap- 
able and that can be accommodated in a negotiated settlement. Gen- 
erally speaking, a limited war actively involves only two (or very few) 
major belligerents in the fighting. The battle is confined to a local 
geographical area and directed against selected targets — primarily 
those of direct military importance. 114 

In 1957 the United States Chief of Naval Operations stated his estimate 
of future probabilities : 

The Korean War was a limited war. A limited war is the type of war 

most likely to occur in the thermonuclear age. 115 

If a limited war with major powers among the participants is the most 
probable type of war, there are compelling strategic reasons to be prepared 
for it. There is also the opportunity to determine whether or not limited 
war provides the effective means for the juridical limitation of international 
coercion. Since limited war involves limited political objectives, it should 
be clear that the coercion which is employed to achieve the objectives of 
limited war must itself be limited both in scope and intensity. Assuming 
that the belligerents comprise major powers with nuclear and thermo- 
nuclear capabilities, each must limit the coercion it employs. If this is not 
done it will provoke expanded countercoercion with a resulting escalation 



m Ibid. 

113 See generally Kissinger, Nuclear Weapons and Foreign Policy (1957). 

114 Osgood 142. 

115 Admiral Burke's words appear in his foreword to Cagle & Mason. 



27 

of the war. In short, the military principle of economy of force must be 
employed if a war is to be limited. This principle has been described as 
follows : 

It prescribes that in the use of armed force as an instrument of 
national policy no greater force should be employed than is necessary 
to achieve the objectives toward which it is directed; or, stated 
another way, the dimensions of military force should be proportionate 
to the value of the objective at stake. 116 

Another type of war is limited in the sense that the belligerents are not 
capable of greater military efforts than those involved in a limited war. 
From the standpoint of such belligerents the war may be deemed to be 
general in terms of the resources involved and the military effort exerted. 
For the neutrals, such a war will nevertheless be regarded as limited. 117 
Neutral interests in maintaining their peacetime activities should be a 
powerful influence upon the belligerents in limiting the coercion employed. 
It is not realistic to think that minor belligerents would be permitted to 
disrupt the peaceful activities of the world community by the employment 
of extensive military techniques. 

The result of either kind of limited war should be to reduce belligerent 
claims concerning legally permissible combatants, areas of operation, ob- 
jects and methods of attack, and weapons of attack. If this is accurate, 
it appears to be probable that a limited war would enhance the role of 
law by reducing the types and amounts of the coercion employed. A 
governmental decision to fight a limited war rather than a general one 
would normally involve a high-level policy decision not to use some 
methods and degrees of coercion which are lawful under the laws of war. 
In view of the great disparity between the factual context of limited war 
and unlimited war, it is even possible that some of the traditional legal 
doctrines which were not honored during the World Wars, such as visit 
and search at sea, could be maintained in limited war situations. It is 
clear that a war of all-out thermonuclear devastation would leave little 
or no role for law. Consequently, the term "general war" is used to refer 
to a situation of comprehensive international coercion such as both the 
World Wars in which only the traditional weapons are employed or to 
the same type of war in which nuclear weapons are also employed but 



116 Osgood 18. 

117 It is recognized that the United Nations Charter has changed the law of neu- 
trality. See Oppenheim-Lauterpacht 647: 

While the Charter has affected in a decisive way the right of Members of the 
United Nations to remain neutral, it has not substantially abolished their right 
to neutrality either in wars between Members of the United Nations or in wars 
between non-Members or between Members and non-Members. 



28 

in a carefully restricted manner. 118 General war in this sense and limited 
war, in contrast to an all-out war of mutual destruction, provide the 
opportunity to place meaningful juridical limitations upon the exercise 
of international coercion. In each of the ensuing chapters the central legal 
issues will be examined in the context of limited as well as general war. 119 



118 This, in substance, is the recommendation concerning the use of nuclear weap- 
ons in Cagle, "A Philosophy for Naval Atomic Warfare," 83 Nav. Inst. Proe. 249 
(1957). A similar recommendation appears in Brodie, Escalation and the Nuclear 
Option (1966). 

119 The limited war context is not usually employed in studies of the law of naval 
warfare. It is apparently assumed that only general war is likely in the future. See 
e.g. the Colombos, Smith, and Tucker books. 



CHAPTER II 
CLAIMS CONCERNING LAWFUL COMBATANTS 

The most general claim concerning combatants in naval warfare is that 
it is lawful to use all efficient vessels, aircraft, and personnel against the 
enemy. As stated in Chapter I, submarines have been the subject of claims 
and counterclaims concerning their combatant status. If the claim to deny 
submarines lawful combatant status or to "abolish" them were successful, 
it would deprive the submarine officers and crew of status as lawful com- 
batants. A related claim is that the submarine must be "limited" by law in 
some way. 

A. WARSHIPS AS LAWFUL COMBATANTS 

It is well known that not everyone may lawfully participate in combat 
during war or hostilities. Both public authorization and public control 
have been traditionally required in order to confer the status of lawful 
combatants. 1 Thus, soldiers, sailors, and airmen who are members of the 
public armed forces are typical lawful combatants. 2 They are authorized 
by their government to commit acts of regulated and controlled coercion 
and violence. "Lawful combatants" is used to refer to those indviduals 
who, if captured by the enemy, must be accorded all the rights provided 
by international law for prisoners of war. "Unlawful combatants," in 
contrast, is used to refer to those individuals who, upon capture, are 
subject to punishment if they lack public authorization and control. 

In land hostilities the individual is regarded as the basic unit of military 
force and, consequently, it is important that he be identified indvidually 
as having combatant status. 3 In sea and air hostilities the individual com- 
batant is usually associated with a combatant unit such as a warship or 



1 The customary law requirements stated in the text are reflected in Hague Con- 
vention VII (1907). Art. 1 requires both governmental "authority" and "control" 
over a warship which is converted from a merchant ship. These are the same require- 
ments which apply to warships generally. 

2 Oppenheim-Lauterpacht 255. Army personnel, such as the crews of the Japanese 
Army submarines mentioned in the text of Ch. I accompanying note 30 are, of course, 
lawful combatants in naval war. 

3 The uniform is regarded as more important in land than in naval or air war. 
See Spaight 100-04. 

29 



30 

military aircraft. 4 A warship or military aircraft is a lawful combatant 
unit since its personnel comply with the dual juridical requirements of 
public authorization and public control. 

Where they are separated from their vessel or aircraft, as in a shipwreck 
or forced landing situation, naval officers and crewmen retain their status 
as lawful combatants. In the same way, such officers and sailors who 
conduct hostilities apart from warships and naval aircraft, such as the 
U.S. Navy's underwater demolition teams composed of swimmers, 5 are 
lawful combatants. There can be no doubt concerning the lawful comba- 
tant status in such a situation but, as a practical matter it may be particu- 
larly desirable for such combatants to carry military identification tags or 
to wear uniforms in order to facilitate their identification. If questions 
are raised concerning lawful combatant status, reasonable doubts in estab- 
lishing identification should be resolved in favor of those claiming such 
status. 

The necessity for according prisoner of war status to all lawful comba- 
tants is illustrated by the Trial of Schoengrath 6 before a British Military 
Court in Germany in 1946. In this case the defendants, seven members 
of the Nazi SS, were charged with committing a war crime "in the killing 
of an unknown Allied airman, a prisoner of war." 7 The facts concerned 
an airman who had descended by parachute from his bomber aircraft 
which had been flying westward over occupied Holland. The defendants, 
apparently acting on the assumption that he was an Allied airman, shot 
him shortly after his capture rather than accord him status as a prisoner 
of war. The defense contended that there was no case to answer because 
the prosecution had produced no evidence to show that the victim was 
in fact an Allied airman. 8 The prosecution replied that it was too far- 
fetched to assume that the bomber aircraft involved, in view of the facts, 
was a neutral aircraft. 9 The court convicted the defendants as charged 
even though the nationality of the airman was not proved. The decision 
is sound because the airman was entitled to prisoner of war status in the 
light of the facts which were shown. Even if he had been a neutral national 
serving in the air force of an Allied state, he would have been a lawful 
combatant. 

Where an individual is entitled to status as a prisoner of war, he must 
not be subjected to discriminatory treatment. This doctrine is prescribed 



* Such combatant units typically display the national flag or emblem as an identify- 
ing mark. 

5 Factual description appears in Fane & Moore, "The Naked Warriors," 82 Nav. 
Inst. Proc. 913 (1956). 

8 1 1 Reps. U.N. Comm. 83. 
7 Ibid. 

»Id. at 84. 

9 Ibid. 



31 

in appropriately broad terms in the Geneva Convention Relative to the 
Treatment of Prisoners of War (1949) : 

Taking into consideration the provisions of the present Convention 
relating to rank and sex, and subject to any privileged treatment 
which may be accorded to them by reason of their state of health, 
age or professional qualifications, all prisoners of war shall be treated 
alike by the Detaining Power, without any adverse distinction based 
on race, nationality, religious belief or political opinions, or any other 
distinction founded on similar criteria. 10 

Since the submarine warship is subject to the same public authorization 
and control as any other warship, it appears to qualify as a lawful combat- 
ant unit. If a submarine is a lawful combatant, its personnel are entitled 
to prisoner of war status if they are captured. Claims to abolish or limit 
submarines are based upon the implicit premise of their existing lawful 
combatant status. 

B. CLAIMS TO "ABOLISH" OR LIMIT SUBMARINES AS COM- 
BATANTS 

1. The Hague Peace Conferences 

The primary work of the Hague Conferences was the legal regulation 
of warfare rather than the establishment of peace. 

a. THE 1899 CONFERENCE 

The Russian Emperor issued the first invitation for the 1899 Con- 
ference with stated objectives which included ending "these incessant 
armaments." " Apparently the negative reaction of the powers required 
the second invitation which relegated disarmament, except that concern- 
ing submarines, to a secondary role. 12 The motivation for the Conference 
has been ascribed to the humanitarian personal characteristics of the 
Czar. 13 It probably was at least partly due to the superiority of other states 
over Russia in military and naval technology and armament. It was cau- 
tiously proposed in the first article of the second invitation that consider- 
ation be given to not increasing existing military forces and to making 
"a preliminary examination of the means by which a reduction might even 
be effected in the forces and Budgets [sic] above mentioned." 14 Other 
subjects proposed as the second and third articles respectively were the 
limitation of guns and explosives to prohibit any more powerful than those 



10 Art. 16. Spaight 105-07 sets forth incidents demonstrating the lack of a "colour 
line" in air warfare. 

"Rescript of the Russian Emperor (Aug. 24, 1898). 2 Scott 1 at 2. 
"Russian Circular (Jan. 11, 1899). 2 Scott 3. 

13 By Prof. James Brown Scott. 1 Scott 39. 

14 2 Scott 4. 



32 

then in use. 15 "The subjects to be submitted for international disucussion 
at the Conference" included, as the fourth article, the proposal 

To prohibit the use, in naval warfare, of submarine torpedo boats 
or plungers, or other similar engines of destruction. . . . 16 
The proposal was at a time when no new major war appeared to threaten 
the peace of the world and when the submarine or "plunger" was a 
relatively new and untried vessel. 

Secretary of State Hay instructed the United States delegation on these 
points in no uncertain terms : 

The second, third, and fourth articles, relating to the non-employ- 
ment of firearms, explosives, and other destructive agents, the restricted 
use of existing instruments of destruction, and the prohibition of 
certain contrivances employed in naval warfare, seem lacking in 
practicability, and the discussion of these propositions would prob- 
ably prove provocative of divergence rather than unanimity of views. 
It is doubtful if wars are to be diminished by rendering them less 
destructive, for it is the plain lesson of history that the periods of 
peace have been longer protracted as the cost and destructiveness 
of war have increased. The expediency of restraining the inventive 
genius of our people in the direction of devising means of defense 
is by no means clear, and, considering the temptations to which men 
and nations may be exposed in a time of conflict, it is doubtful if an 
international agreement to this end would prove effective. The dissent 
of a single powerful nation might render it altogther nugatory. The 
delegates are, therefore, enjoined not to give the weight of their 
influence to the promotion of projects the realization of which is 
so uncertain. 17 

The combined instructions and rationale just quoted fixed the position 
of the United States delegation. The views of the various delegations on 
the Russian proposal to ban submarines were expressed on May 31, 1899. 18 
The German delegate, representing a state engaged in the construction 
of a great surface navy, favored interdiction conditioned upon unanimity. 
The Japanese and Italian delegates stated their opinions as being similar 
to the German. The British delegate, representing the preeminent naval 
power, favored prohibition providing only that the Great Powers agreed. 
The lesser naval powers could be expected to take a difTerent view. The 
delegate of Austria-Hungary represented a state which possessed no sub- 
marines but in the personal view of the delegate they "may be used for 



w Ibid. 

16 Ibid. 

17 2 Scott 6 at 7-8. 

18 The views of the delegations summarized in the two textual paragraphs appear 
in Scott (ed.), The Proceedings of the Hague Peace Conferences: The Conference of 
1899 367-68 (1920). 



33 

the defense of ports and roadsteads and render very important services." 
The delegate of France, representing a country with a navy and a building 
program inferior to that of Great Britain or Germany, stated his country's 
position "that the submarine torpedo [boat] has an eminently defensive 
purpose, and that the right to use it should therefore not be taken from 
a country." The Netherlands delegate characterized the submarine as "the 
weapon of the weak" 19 and so not subject to prohibition. The delegate of 
Sweden-Norway concurred with the Netherlands views. The Turkish 
delegate wished to reserve the defensive use of submarines. The delegate 
of Siam wished to refer the matter to his Government since he had general 
instructions to favor humanitarian interests but believed that "the neces- 
sities of defense of the small nations must be taken into serious consider- 
ation." The Danish delegate, perhaps surprisingly, thought that his 
Government, to which he referred the question, would favor prohibition 
conditioned upon unanimity. The attitude of Russia was not in doubt but 
its desire for prohibition was also conditioned on unanimity. The dominant 
view of the smaller naval powers was that submarines constituted a cheap 
means of defense and so could not be prohibited. 

Three weeks later the question of prohibiting submarines was put to a 
vote in plenary meeting. The voting was recorded as follows: 20 

For prohibition with reservation (of unspecified character) : Belgium, 
Greece, Persia, Siam, and Bulgaria (five states) . 

For prohibition with reservation of unanimity: Germany, Italy, Great 
Britain, Japan, and Roumania (five states) . 

Against prohibition: United States, Austria-Hungary, Denmark, Spain, 
France, Portugal, Sweden-Norway, Netherlands, and Turkey (nine states). 

Abstaining: Russia, Serbia, and Switzerland (three states). 

Thus the first attempt to make the submarine an unlawful combatant 
ended in failure. 

b. THE 1907 CONFERENCE 

During the Russo-Japanese War, President Theodore Roosevelt 
took the initiative in calling the Conference of 1907 21 and, after the Peace 
Treaty of Portsmouth ending that war, the President allowed the Czar 
to become the nominal initiator as a matter of diplomatic courtesy. 22 By 
1907 most of the major navies contained submarines and neither the 



19 That the submarine is the weapon of the weak is argued in Castex, "The Weapon 
of the Weak— A French View," 77 /. Royal United Serv. Inst. 737 (1932). The 
contrary appears in Richmond, "The Weapon of the Weak," 77 /. Royal United 
Serv. Inst. 497 (1932). 

20 The voting is recorded in Scott, op. cit. supra note 18 at 299. 

21 1 Scott 91-93. 

22 Id. at 93. 



34 

diplomatic correspondence issued by the President nor that issued by the 
Czar suggested their abolition. 

The Russo-Japanese War demonstrated the serious apprehensions of the 
Russian Navy concerning submarines. On April 13, 1904 two first-class 
Russian battleships struck Japanese mines off Port Arthur and one sank 
while the other was severely damaged. This event has been described 
as follows: 

[The] disaster seems to have caused something approaching a panic 
in the Russian fleet. Ships began to fire wildly at the water round 
them, apparently under the impression that they were being attacked 
by submarine boats. . . . 23 

The 1907 Conference recognized by necessary implication the lawful 
combatant status of surface torpedo boats, surface torpedo boat destroyers, 
and also submarines. It did this by regulating their principal weapon, 
the self-propelled torpedo. Hague Convention VIII provided that torpe- 
does must be so constructed that those which miss their mark then become 
harmless. 24 Of course, where the target was missed the primary military 
value of the self-propelled torpedo was eliminated and the regulation only 
prevented its use as a floating mine. And so the stage was laid for the 
submarine to be used in World War I. 

2. The First World War 

a. THE PUNITIVE TREATMENT OF CAPTURED PER- 
SONNEL 

In the early part of World War I, during the incumbency of 
Winston Churchill as First Lord of the Admiralty, the British Government 
adopted a system of punitive treatment for certain German prisoners of 
war in its hands. The prisoners of war involved consisted of thirty-nine 
officers and men who comprised the surviving crew members of two Ger- 
man submarines. 25 All of these submarine prisoners were segregated in 
naval detention barracks and some of them were held there in solitary 
confinement. The German Government promptly retaliated by placing an 
equal number of British Army officers in solitary confinement. Thereafter, 
the British Government changed its policy and treated captured German 
submarine personnel in the same way as other prisoners of war. The British 
claim to accord punitive treatment to German submarine personnel was 
in substance a claim that German submarines were unlawful combatants 



23 1 British Committee of Imperial Defense, Official History (Naval and Military) 
of Russo-Japanese War 94 (1910). In the same war Russia attempted to create a 
submarine flotilla in the Far East by transporting submarines in sections overland. 
2 id. 639. 

21 Art. 1, paragraph 3. 

25 The textual statements are based upon 2 Garner 50-51. 



35 

and that their personnel, upon capture, were not entitled to nondiscrimina- 
tory treatment as prisoners of war. 26 

The case of Captain Fryatt, which also arose in the early part of the 
First World War, concerns the related issue of the status of merchant ship 
personnel. 27 Captain Fryatt of the British unarmed merchant ship Brussels 
refused to surrender to a German submarine and attempted, without suc- 
cess, to ram the submarine as it approached his ship. Subsequently he was 
captured and the German Government declined to accord him prisoner 
of war status. Following a court-martial he was executed on the charge of 
having committed "a franc-tireur crime against the sea forces of Ger- 
many." 28 The official German statement announcing the execution stated 
that Fryatt was "not a member of a combatant force" and that he had 
been condemned to death because of his attempted attack upon a German 
submarine. 29 Thus the German claim rested upon the simple premise that 
Captain Fryatt was an unlawful combatant who violated the laws of war 
by his attempted attack. Professor Garner describes the execution as a 
"plain act of judicial murder." 30 

b. THE PARTIAL "ABOLITION" OF SUBMARINES 

During the First World War any doubts as to the efficiency of sub- 
marine naval vessels were removed. It is well known that Germany used 
submarines to bring Great Britain to the brink of defeat. The United 
States claimed that the German methods of submarine warfare were 
illegal but did not claim that the submarine was an unlawful combatant 
unit. 31 

Following the war, the Central Powers' submarines existing or in process 
of construction were transferred to the Allies or broken up. 32 Submarines 
were abolished for Germany, Austria, Hungary, Bulgaria, and Turkey by 
prohibiting each of them to acquire submarines through an article employ- 
ing the following uniform language which appeared in each peace treaty 
with the five states just named: 



26 Prof. Garner's account also states that the two German submarines involved had 
been "sinking British and neutral merchant vessels." 2 Garner 50. Therefore, issues 
concerning objects and methods of attack may also be involved. The text, however, 
only considers the central issue concerning combatant status. 

27 The textual statements are based upon 1 Garner 407-13. 

28 Quoted in 1 Garner 408. 

29 1 Garner 408, note 1. 

80 Id. at 413. See Scott, "The Execution of Captain Fryatt," 9 AJ.I.L. 865 (1916). 

31 Hyde 2007. 

33 The Treaty of Versailles with Germany, arts. 181, 188; the Treaty of St. Ger- 
main with Austria, arts. 136, 138; the Treaty of Trianon with Hungary, arts. 120, 
122; the Treaty of Neuilly with Bulgaria, arts. 83, 84; the (unratified) Treaty of 
Sevres with Turkey, arts. 184, 185. The cited treaties appear in 1 & 2 Carnegie 
Endowment for International Peace, The Treaties of Peace 1919-1923 (1924). 



36 

The construction or acquisition of any submarine, even for commercial 

purposes, shall be forbidden in , 33 

Thus partial abolition was obtained as one of the fruits of victory. 

3. Naval Disarmament and Limitation Between the World Wars 

a. THE WASHINGTON CONFERENCE (1921-1922) 

An observer has stated that the United States was the only state 
in a position to call a conference on the limitation of armament following 
World War I. 34 The United States was building the largest navy in the 
world and was not a member of the League of Nations, which organization 
was therefore precluded from effective action. 35 The United States posi- 
tion appeared to be that it could achieve agreement on the limitation of 
naval armament by giving up its great building program. 36 

In addition to the United States, the United Kingdom, and Japan, the 
two principal European naval powers, France and Italy, were participants. 

(1) The Washington Naval Treaty (1922) 

The United States naval disarmament proposals presented by 
Secretary of State Hughes were comprehensive and specific. 37 They were 
based on four stated "general principles" : 38 ( 1 ) the elimination of actual 
and projected capital shipbuilding programs; (2) additional reduction by 
scrapping of certain older capital ships; (3) regard for "existing naval 
strength"; (4) the existing capital ship tonnage as the basis for proportion- 
ate allowance of tonnage for other combatant vessels. It was specifically 
proposed that the United States and Great Britain would each be allowed 
90,000 tons of submarines to 54,000 tons for Japan. 39 But before the ques- 
tion of limitation of submarines was considered, Great Britain, through 
Lord Lee, the First Lord of the Admiralty, proposed their abolition to 
the Committee on Limitation of Armament. 

(a) Abolition 

On December 22, 1921 Lord Lee presented an indictment of 



33 The Treaty of Versailles art. 191; the Treaty of St. Germain art. 140; the 
Treaty of Trianon art. 124; the Treaty of Neuilly art. 86; the Treaty of Sevres art. 
186. 

The British approved dropping the ban on submarines of the Versailles Treaty 
in the Anglo-German Naval Agreement (June 18, 1935). See Watt, "Anglo-German 
Naval Negotiations on the Eve of the Second World War, Part I," 103 /. Royal 
United Serv. Inst. 201 (1958). 

^Buell, The Washington Conference 147 (1922). 

a5 Ibid. 

36 See id. at 152. 

37 Wash. Conf. 56-63. 

38 Id. at 56. 

39 Id. at 61. 



37 

the submarine. 40 The French view of the need for a large new French 
submarine fleet had already alarmed the British. In demanding the "total 
and final abolition" of the submarine, Lord Lee attempted to make it 
perfectly clear that the British had "no unworthy or selfish motives." 41 On 
the contrary, they were fighting the battle not only of the allied and 
associated powers but of the entire civilized world. 42 He explained that 
the history of the recent war had demonstrated in convincing fashion that 
submarines constituted neither effective nor economical defense for the 
smaller powers. 43 During the World War, Germany had employed 375 
submarines and 203 of these had been sunk. He pointed out that millions 
of British and American troops had been transported across the water 
without the loss of a single man excepting those on hospital ships. The 
submarine, in the British view, was effective only against merchant ship- 
ping. During the war over 12 million tons of such shipping had been sunk 
along with the killing of 20,000 noncombatant men, women, and children. 
Before the end of his speech, Lord Lee admitted that antisubmarine 
warfare was a very expensive matter indeed. During the war the United 
Kingdom had maintained "an average of no less than 3,000 anti-submarine 
surface craft" in order to deal with no more than nine or ten German 
submarines operating at one time on the Atlantic approaches to France 
and Great Britain. 44 

A sense of realism concerning Lord Lee's recommendation can best be 
conveyed by direct quotations from it : 

It was a weapon of murder and piracy, involving the drowning of 
noncombatants. It had been used to sink passenger ships, cargo ships, 
and even hospital ships. Technically the submarine was so constructed 
that it could not be utilized to rescue even women and children from 
sinking ships. That was why he hoped that the conference would not 
give it a new lease of life. 45 

w 7T 7T "S!" "ST W "»P 

The submarine was the only class of vessel for which the conference 
was asked to give — he would not say a license, but permission to thrive 
and multiply. It would be a great disappointment if the British Empire 
delegation failed to persuade the conference to get rid of this weapon, 
which involved so much evil to peoples who live on or by the sea. 

To show the earnestness of the British Government in this matter, 
Lord Lee pointed out that Great Britain possessed the largest and 



40 Id. at 264-69. 

41 Id. at 265. 

42 



Id. at 268. 

43 The balance of the summary in the textual paragraph is taken from id. at 265-67. 

44 Wash. Conf. 268. See also the text of Ch. I accompanying note 19. 

45 Wash. Conf. 269. 



38 

probably the most efficient submarine navy in the world, composed of 
100 vessels of 80,000 tons. She was prepared to scrap the whole of 
this great fleet, to disband the personnel, provided the other powers 
would do the same. That was the British offer to the world, and he 
believed it was a greater contribution to the cause of humanity than 
even the limitation of capital ships. 46 

The French, Italian, and Japanese delegations then joined with the 
British in deploring the illegal and inhumane use of submarines by Ger- 
many during the World War. 47 But each of them indicated that submarines 
were regarded as useful for defense and expresssed the conviction that 
submarines could be used consistent with the law. 48 

Secretary Hughes then placed the United States on record as opposed 
to abolition by reading the report on submarines which had been prepared 
by the Advisory Committee of the American delegation. The report joined 
in condemning illegal uses of the submarine and considered uses regarded 
as legal in some detail. 49 It also stated: 

The United States would never desire its Navy to undertake un- 
limited submarine warfare. In fact, the spirit of fair play of the people 
would bring about the downfall of the administration which attempted 
to sanction its use. 50 

On December 23, 1921 Admiral de Bon made formal reply to Lord Lee 
for the French Government. 51 He first emphasized the military efficiency 
and uses of submarines and referred to a number of examples drawn 
from the World War. His second and main point concerned the efficiency 
of the submarine against merchant vessels. It started with the usual denun- 
ciation of German methods and went on to claim the efficiency of the 
submarine even without the use of such methods. 

Certainly the fruits of submarine warfare would have been smaller 
if they had been obliged to confiine themselves to the limits of honor- 
able warfare, but it is impossible to claim that there would have 
been none. 52 

* * * * * * * 

Our opinion is that it is especially the weapon of nations not having 
a large navy. It is, in fact, a comparatively cheap element in naval 
warfare which can be procured in large numbers at a cost far below 
that of capital ships. 53 



46 Ibid. 

i7 Id. at 270-72. 

48 Ibid. 

i9 Id. at 273-77. 

60 Id. at 276. 

51 Id. at 278-85. 

52 Id. at 281. 

53 Id. at 282. 



39 

In conclusion, Admiral de Bon stated the French position unequivocally: 
"I believe that 90,000 tons is the absolute minimum for all the navies who 
may want to have a submarine force." 54 This was supported by saying that 
it would only mean ninety vessels of modern type of which, because of 
maintenance and repair requirements, only fifteen or twenty would be capa- 
ble of simultaneous action. 55 

Mr. Balfour then made two replies to the French arguments. 56 In his 
second statement he pointed out that France had prevented any consider- 
ation of reduction of land armaments because of its need to maintain a 
great army against possible German military resurgence. 57 Now it was 
stated that France must also maintain a tremendous submarine fleet. He 
asked as to the value of a French submarine fleet if the German submarine 
fleet were rebuilt. In the British view, such a French submarine fleet would 
be of no value and, futher, France would have to look to British Navy 
antisubmarine forces for protection as it had done before. 58 

Secretary Hughes, as chairman, then formally recognized that it was not 
possible to reach agreement on abolition. 59 After complimentary references 
to the substance and spirit of the British proposal, he expressed the hope 
that the discussions on the subject would lead to a denunciation of illegal 
methods of submarine warfare and an undertaking by the five powers to 
assure the application of the principles of international law to such war- 
fare. 60 In the chairman's view, limitation should be considered unless 
further discussion of abolition was desired. 61 Mr. Balfour took the oppor- 
tunity to place a brief summary of the British position in the record. 

The British Empire delegation desired formally to place on record 
its opinion that the use of submarines, whilst of small value for defen- 
sive purposes, leads inevitably to acts which are inconsistent with the 
laws of war and the dictates of humanity, and the delegation desires 
that united action should be taken by all nations to forbid their main- 
tenance, construction, or employment. 62 

Dr. Royse has summarized the outcome of the "submarine debates" : 

Utilitarianism appeared at the Washington Conference of 1921-22 
as a dominating motive in the submarine debates. The same attitude 
was taken toward the submarine, by most of the Powers present, as 



54 Id. at 285. 

55 Id. at 284-85. 

56 Id. at 285-89, 295-98. 

57 Id. at 295. 

58 Id. at 295-96. 

59 Id. at 300. 

60 Id. at 300-02. 

61 Id. at 302. 
™Ibid. 



40 

that taken by the United States Government during the late [First 

World] war, that the submarine was not an illegitimate weapon in 

itself. 63 

(b) Limitation 
Chairman Hughes then turned to the limitation of submarines 
by making a concrete revised proposal on this subject. In lieu of the 90,000 
tons of submarines first proposed for the United States and Great Britain, 
he now proposed 60,000 tons maximum for each. The remaining three 
powers would maintain the status quo and he understood this to be 31,452 
tons for Japan, 31,391 tons for France, and about 21,000 tons for Italy. 64 
When the meeting reconvened on December 24 the British delegation 
accepted the chairman's proposal. 65 Admiral de Bon referred to the French 
conception of ninety vessels as a minimum submarine fleet and said that 
the proposal was so far below this that it "was equivalent to abolishing 
the whole French program." 66 Consequently, the French delegation could 
not accept the proposals and must ask instructions of its Government. 67 
Italy and Japan also rejected the United States proposals. Italy was will- 
ing, however, to accept a maximum of 31,500 tons on condition of parity 
with France. 68 Japan insisted on the original United States proposal of 
54,000 tons in spite of the substantial reductions already accepted by the 
United States and Great Britain. 69 

Four days later Mr. Sarraut presented the considered views of the 
French Government. After referring to the French acceptance of inferior 
strength in capital ships, he stated that 90,000 tons for submarines consti- 
tuted the minimum consistent with his country's vital interests. 70 Thus 
ended the attempt to restrict the total tonnages of submarine fleets. Chair- 
man Hughes admitted his disappointment concerning the French position 
on submarines. 71 Mr. Balfour went further and said that the 90,000 tons 
of submarines were intended to destroy commerce. 72 In addition, the great 
submarine fleet to be built on the shores closest to Great Britain would 
necessarily be a menace to her. 73 Mr. Sarraut indignantly rejected the 
criticisms. 74 Mr. Balfour then attempted further explanation of the reasons 



63 Royse 1 9 ( footnote omitted ) 

64 Wash. Conf. 303. 

65 Id. at 304. 

66 Ibid. 

67 Ibid. 

68 Id. at 305. 

69 Id. at 306. 

70 Id. at 309-10. 

71 Id. at 310-11. 

72 Id. at 312. 

73 Id. at 313. 

74 Id. at 314-16. 



41 

why submarines were a threat to Britain. 75 The records of the Conference 
do not reveal French sympathy for what was regarded as a British problem. 
In addition to the failure to limit the size of submarine forces, the 
ratified Treaty on Limitation of Naval Armament 76 between the five 
naval powers states no limitation on the size or armament of individual 
submarines. This lack of restriction together with the provision in the 
Treaty permitting the stiffening of merchant ships' decks in time of peace 
to facilitate arming them in wartime 77 indicated the probability that 
both submarines and armed merchant ships would be used in the next 
general war. It was probable that aircraft would be used also. The dis- 
cussions showed no interest in the "abolition" of military aircraft. Mr. 
Balfour, for example, stated : 

Unlike the case of submarines, in the case of aircraft military and 
civilian uses were not sharply divided. There was practically no com- 
mercial civil use for a submarine, but there were many who thought 
that the development of aerial invention was going to exert an im- 
mense influence upon the economic development of mankind and 
upon intercommunication of different peoples. In the present stage 
of their knowledge of air matters it seemed quite impossible to limit 
aircraft designed for commercial uses . . . , 78 

(2) The Submarine Treaty (1922): Submarine Personnel as 
Pirates 

After it became clear that there would be neither abolition nor 
limitation, as such, of submarines, Mr. Root, a distinguished former Sec- 
retary of State of the United States, proposed certain resolutions concern- 
ing the rules of submarine warfare. In his view, the resolutions should 
be clear and simple. 79 They were characterized by their terms as "the 
prohibition of the use of submarines in warfare" 80 but actually only pro- 
hibited their use against merchant ships. 

In the ensuing discussion, Senator Schanzer, the head of the Italian 
delegation, thought it would be desirable to provide a definition of "mer- 
chant craft." 81 Mr. Root replied that, "Throughout all the long history 
of international law no term had been better understood than the term 



75 Id. at 316-17. "There was no doubt that submarines were powerful for the 
destruction of lines of communication; but they were powerless to protect them." 
Id. at 317. 

TO The official text of this Treaty of Feb. 6, 1922 is in 43 Stat. 1655 (1923). 

77 Art. 14. 

78 Wash. Conf. 414. 

79 So that they could be understood by "the man in the street and the man on the 
farm ..." Id. at 321. 

80 Wash. Conf. 322. 

81 Id. at 326-27. 



42 

'a merchant ship'." 82 Further, the term "could not be made clearer by 
the addition of definitions which would only serve to weaken and confuse 
it." 83 Senator Schanzer later concluded for his delegation that the term 
"merchant vessel" as employed in the resolution was understood to refer 
to "unarmed merchant vessels." 84 

The resolutions were subject to some change before they were written 
into A Treaty in Relation to the Use of Submarines and Noxious Gases 
in Warfare. Article I of the proposed treaty laid down certain rules of 
law, stated to be "an established part of international law," 85 concerning 
visit, search, and seizure of merchant vessels as well as attacks upon them. 
Article I further provided : 

Belligerent submarines are not under any circumstances exempt 
from the universal rules above stated; and if a submarine cannot 
capture a merchant vessel in conformity with these rules the existing 
law of nations requires it to desist from attack and from seizure and 
to permit the merchant vessel to proceed unmolested. 86 
Article III provided: 

The Signatory Powers, desiring to insure the enforcement of the 
humane rules of existing law declared by them with respect to attacks 
upon and the seizure and destruction of merchant ships, further de- 
clare that any person in the service of any Power who shall violate 
any of those rules, whether or not such person is under orders of a 
governmental superior, shall be deemed to have violated the laws of 
war and shall be liable to trial and punishment as if for an act of 
piracy and may be brought to trial before the civil or military authori- 
ties of any Power within the jurisdiction of which he may be found. 87 
As indicated by the excerpt quoted from article I, as well as by the 
negotiating history and the title of the treaty, the submarine was the 
principal subject. Article III had been broadened beyond submarine 
personnel but, in the light of the experience in the First World War, 
submarine personnel were the principal concern. 

In substance the Root resolutions were an attempt to do indirectly 
what the Conference had declined to do directly, that is, make submarines 
and their personnel unlawful combatants. The attempt, however, was only 
successful in placing conditions upon the combatant status of submarines. 
When the specified rules concerning action against merchant ships are 
violated, the status of the submarine's personnel is assimilated to that of 



82 Id. at 328. 

83 Ibid. 

84 Id. at 365. 

86 



Id. at 887. Prof. G. G. Wilson has demonstrated the inaccuracy of the statement: 
U.S. Naval War College, International Law Situations 1930 34, 35 (1931) 

86 Wash. Conf. 887. 

87 Ibid. 



43 

unlawful combatants or pirates. The Root resolutions, including this pro- 
vision, received unanimous assent in the Conference. 88 Thereafter, the 
French Government declined to ratify the Submarine Treaty and, con- 
sequently, submarines and their personnel remained lawful combatants 
unconditionally. In summary, the submarine came out of the Washington 
Conference with undiminished status as a lawful combatant. 89 

b. THE GENEVA NAVAL CONFERENCE (1927) 

For present purposes this Conference is important because the 
United States changed its position concerning the necessity for submarines 
which it had advanced at the Washington Conference and now favored 
their abolition. In instructing the United States delegation to the Con- 
ference, President Coolidge stated orally the difficulty of a three-power 
conference abolishing submarines but indicated that we should express 
our willingness to abolish. 90 The British were consistent in favoring aboli- 
tion and the Japanese were consistent in favoring retention. 91 

The 1927 Conference may be described briefly as a failure. France and 
Italy refused to attend and Japan, the United Kingdom, and the United 
States accomplished little or nothing by attending. The United Kingdom 
and the United States became involved in fruitless controversy concerning 
the numbers and types of cruisers. 92 

c. THE LONDON NAVAL TREATY (1930) 

The failure of the 1927 Conference was doubtless one of the causes 
of the London Conference of 1930. 

( 1 ) Abolition 
The British invitation to Japan, France, and Italy was shown 



88 Id. at 367-84. Before voting on the provision including the phrase "act of piracy" 
Mr. Hanihara, speaking for the Japanese delegation, asked enlightenment as to its 
meaning. Id. at 385. He received but little clarification from Chairman Hughes and 
Mr. Root. Id. at 383-84. 

89 General description of the Washington Conference appears in Wright, "The 
Washington Conference," 6 Minn. L. Rev. 279 (1922). 

The submarine provisions are regarded as based upon "humane sentiments for the 
protection of lives ..." in Anderson, "As If for an Act of Piracy," 16 A.J.I.L. 260 
(1922). They are criticized in Anderson, "Submarines and Disarmament Confer- 
ences," 53 Nav. Inst. Proc. 50 (1927) ; Knapp, "Treaty Number Two at the Wash- 
ington Conference," 39 Poli. Sci. Q. 201 (1924) ; and Roxburgh, "Submarines at the 
Washington Conference," 3 Brit. Y.B.I.L. 150 (1922-23). 

90 Memorandum by the Chief of the Division of Western European Affairs, June 1 , 
1927, [1927] Foreign Rel. U.S. 42 at 43 (1942). 

91 The view of each of the three parties is set forth in Dept. of State, Records of 
the Conference for the Limitation of Naval Armaments Held at Geneva from June 20 
to August 4th 1927 passim (1927). 

92 Ibid. See Toynbee, 1927 Survey of International Affairs 43-82 (1929). 



44 

to the United States in advance and apparently approved by it. 93 It con- 
tained the following significant paragraph: 

Since both the Government of the United States and His Majesty's 
Government in the United Kingdom adhere to the attitude that they 
have publicly adopted in regard to the desirability of securing the 
total abolition of the submarine, this matter hardly gave rise to dis- 
cussion during the recent conversations. They recognize, however, 
that no final settlement on this subject can be reached except in 
conference with the other naval Powers. 94 

The proposal for abolition was made by Mr. Alexander, the First Lord 
of the British Admiralty. 95 His summary of the proposal contained five 
major points: 

( 1 ) In the general interests of humanity. 

(2) In consideration of our view that these vessels are primarily 
offensive instruments. 

(3) In order to secure a most substantial contribution to disarmament 
and peace. 

(4) In view of the very important financial relief to be obtained. 

(5) In consideration of the conditions of service of the personnel and 
the undue risks which can be abolished. 96 

Mr. Alexander dealt with the humanity point briefly and referred to 
"the feelings of horror which the peoples had experienced as results of 
submarine action" 97 in the First World War. He referred to a number of 
uses of the submarine which were deemed to be offensive including the 
German war against commerce. 98 In connection with the economy point 
(4), he emphasized the indirect savings from the abolition of submarines 
which would be realized in destroyers and antisubmarine forces gener- 
ally. 99 The last point (5) opened up a new subject. It was explained that 
working conditions in submarines were cramped and the sailors suffered 



93 London Conf. 3. The proceedings and documents of this Conference also appear 
in United Kingdom Gov't, Documents of the London Naval Conference 1930 (1930). 

94 London Conf. 3 at 4. 

95 Id. at 78-82. 

96 Id. at 81. 

97 Id. at 78. Compare the quoted views with those expressed in Thuillier, "Can 
Methods of Warfare be Restricted?" 81 /. Royal United Serv. Inst. 264 at 267-68 
(1936) : 

If it were possible to induce other nations to forego the use of submarines it 
would be a great advantage to us, since it would rid us of fear of a weapon which 
very greatly neutralizes the power and scope of action of our battle fleets, and 
one which in the late war very nearly brought about our total defeat. But we 
should distinguish between proposals based on the plea of humanity and those 
based on self-interest. 

98 London Conf. at 79. 

99 Id. at 80. 



45 

from poor air when submerged. This was not in keeping with the improved 
standards urged generally for industrial workers. 100 In addition, peacetime 
submarine accidents presented a grim peril. He pointed out that since 1918 
there had been twelve major disasters in the submarine forces of the five 
Powers represented at London with a loss of at least 570 men. 101 Such 
losses, in the British view, could not be prevented by lifesaving equipment. 
Secretary of State Stimson, the chairman of the United States delega- 
tion, supported abolition in a short speech with the following central 
paragraph : 

The essential objection to the submarine is that it is a weapon 
particularly susceptible to abuse; that it is susceptible of use against 
merchant ships in a way which violates alike the old and well-estab- 
lished laws of war and the dictates of humanity. The use made of the 
submarine revolted the conscience of the world, and the threat of its 
unrestricted use against merchant ships was what finally determined 
the entry of my own country into the conflict. In the light of our 
experience it seems clear that in any future war those who employ 
the submarine will be under strong temptation, perhaps irresistible 
temptation, to use it in the way which is most effective for immediate 
purposes, regardless of future consequences. These considerations con- 
vince us that technical arguments should be set aside in order that the 
submarine may henceforth be abolished. 102 

The only elaborate statement of opposition to abolition came from Mr. 
Leygues, the French Minister of Marine. 103 In the French view, the sub- 
marine was to be regarded as any other warship and it was sometimes 
more efficient than other warships and sometimes less so. 104 The World 
War had proven the effectiveness of submarines against surface warships. 
Must it disappear because it disturbs the habits and the honored 
traditions of surface ships? It may happen to-morrow [sic] that every 
type of warship in the various navies will belong to the submarine 
class. 105 
In the French view, the submarine was deemed the defensive weapon of 
the smaller navies. 106 It would supplement the comparative weakness of 



100 Id. at 80-81. 

101 Id. at 81. 

102 Id. at 82. 

103 Id. at 84-88. 

104 Id. at 85. 

105 Id. at 85-86. 



Id. at 86. Compare the view expressed in Richmond, Sea Power in the Modern 
World 167 (1934): 

It is natural that the attitudes which the several Powers have taken regarding 
the submarine should have been governed by considerations of the advantages 
and disadvantages which would accrue to each from its abolition or retention. 



46 

the French surface fleet and provide scouts for it. It would maintain lines 
of communication between France and its overseas territories. In addition, 
alleged barbarity is to be ascribed to particular users of the submarine and 
not to the vessel itself. 107 The development of the submarine was regarded 
as making it more capable of conforming to the rules applicable to sur- 
face ships. 108 The French Government believed that unrestricted submarine 
warfare against commerce should be outlawed, 109 but France could not 
accept abolition of the submarine. 110 

The Italian Foreign Minister stated that the abolition of submarines 
would favor the more powerful navies. 111 Italy, however, did not object 
to abolition, in principle, provided that all the naval powers concurred 
and that it would bring about a drastic reduction of other armaments. 112 
For the Japanese delegation, Admiral Takarabe argued for the retention 
of submarines because of Japan's geographical situation: 

Japan, consisting, as she does, of so many islands scattered so widely 
on the sea extending from the tropical to the frigid zones, sees in such 
kind of arm a convenient and adequate means to provide for her 
national defense. With this comparatively inexpensive war craft she 
can contrive to look after her extensive waterways and vulnerable 
points. Japan desires to retain submarines solely for this purpose. 1 



113 



(2) Limitation 

Submarines were treated similarly to the other principal types 
of warships by the Conference. Article 7 of the Treaty, applicable to all 
five Powers, provided the general rule that each submarine was to be 
limited to a maximum displacement of 2,000 tons with no gun above 5.1 
inch caliber. 114 Three larger submarines with greater caliber guns were 
permitted for each Power. 115 Article 16, applicable only to the United 
States, Great Britain, and Japan, limited the total submarines of each to 
52,000 tons. 116 France and Italy did not accept limitations upon total 
tonnage. 

In summary, the limitations recognized the lawful combatant status of 
submarines by implication. The failure of abolition, even though the United 



Those attempts to arrive at a decision on the basis of its 'offensive' or 'defensive' 
character resulted in nothing more than special pleading. 

107 London Conf. 87. 

108 Ibid. 

109 Ibid. 

110 Id. at 88. 

111 Id. at 89-90. 

112 Id. at 91. 

113 Id. at 92. 

114 Id. at 208. 

115 Art. 7, paragraph 2. 

116 London Conf. 215. 



47 

States supported the consistent British position, 117 recognized their lawful 
combatant status more directly. Article 22 of the London Naval Treaty of 
1930 118 set forth rules regulating submarines and other warships in their 
actions against merchant ships. Its subject, therefore, concerns the law- 
fulness of the objects and methods of belligerent attack and assumes law- 
ful combatant status. 

d. THE LONDON NA VAL TREATY (1936) 

In the opening speech of the Conference, British Prime Minister 
Baldwin mentioned that the British "still press for the abolition of the 
submarine." 119 This consistent objective was supported by the United 
States 120 and opposed by France. 121 In the technical subcommittee Vice 
Admiral Robert of the French delegation stated that the question of the 
abolition of the submarine "should be buried forever." 122 The result was 
no further consideration of abolition during the Conference. 

A measure of qualitative limitation of submarines was achieved in the 
Treaty. It was provided that future submarines were not to exceed 2,000 
tons standard displacement or carry a gun in excess of 5.1 inches in cali- 
ber. 123 Other warships were limited analogously. 

4. The Spanish Civil War and the Second World War 

a. THE NYON AGREEMENT (1937) 

During the Spanish Civil War in 1937 attacks without warning 
were made by unknown submarines against non-Spanish warships and 
merchant ships. 124 The United Kingdom and France took the lead in 
calling a special conference at Nyon in order to condemn submarine at- 
tacks upon such ships and to provide sanctions to deter the attacks. 125 
The ensuing nine-Power agreement provided : 

Whereas arising out of the Spanish conflict attacks have been re- 
peatedly committed in the Mediterranean by submarines against 



U7 The interest of the British legal profession is illustrated by "Discussion on the 
Abolition of Submarines," 11 Grotius Trans. 65 (1925). 

118 Article 22 is set forth in the text of Gh. Ill accompanying note 114. 

1W Dept. of State, The London Naval Conference 1935: Report of the Delegates of 
the United States of America, Text of the London Naval Treaty of 1936 and Other 
Documents 49 (Conference Series No. 24, 1936). 

120 Id. at 95. 

m Id. at 59. 

123 Id. at 330. 

™ Art. 7. Id. at 32. The official text of this Treaty of March 25, 1936 is in 50 
Stat. 1363 (1937). 

^Padelford, "Foreign Shipping During the Spanish Civil War," 32 A.J.I.L. 264 
at 270 (1938). 

m Id. at 271. 



48 

merchant ships not belonging to either of the conflicting Spanish 
parties; and 

Whereas these attacks are violations of the rules of international 
law referred to in Part IV of the Treaty of London of April 22, 1930 
with regard to the sinking of merchant ships and constitute acts con- 
trary to the most elementary dictates of humanity, which should be 
justly treated as acts of piracy . . . 126 

The remainder of the Agreement specified "certain special collective 
measures against piratical attacks by submarines" including : 

Any submarine which attacks such a [merchant] ship in a manner 
contrary to the rules of international law referred to in the Inter- 
national Treaty for the Limitation and Reduction of Naval Arma- 
ments signed in London on April 22, 1930, and confirmed in the 
Protocol signed in London on November 6, 1936 shall be counter- 
attacked and, if possible, destroyed. 127 

Article 22 of the London Naval Treaty of 1930, the juridical basis for 
the Nyon Agreement, provides certain rules for warships, both surface and 
submarine, to observe with regard to merchant ships. As a general rule, 
it is prescribed that such warships "may not sink or render incapable of 
navigation a merchant vessel without having first placed passengers, crew, 
and ship's papers in a place of safety." 128 Unlike the abortive Treaty 
Concerning Submarines and Noxious Gases, 129 the London Naval Treaty 
makes no provision for assimilating naval personnel to pirates. The Nyon 
Agreement, therefore, goes beyond the London Treaty in this respect. 130 
The juridical result of the Nyon Agreement is to deprive the personnel 
of the submarines concerned of status as lawful combatants when they 
carry out the attacks proscribed in the Nyon Agreement and deemed to be 
"piratical acts." The scholars have differed as to whether or not the Nyon 
Agreement is a proper extension of the law of piracy. 131 The present 
significance of the Agreement, although it was an ad hoc arrangement 
for the Spanish Civil War, is that it was a high point in the international 



128 International Agreement for Collective Measures Against Piratical Attacks in the 
Mediterranean by Submarines, Nyon, Sept. 14, 1937, United Kingdom Treaty Series 
No. 38, p. 2 (1937); 31 A.J.I.L. Supp. 179 (1937). 

127 Ibid.; 31 A.J.I.L. Supp. 179 at 180 (1937). The Nyon Supplementary Agree- 
ment of Sept. 17, 1937 extended the piracy concept to surface war vessels and aircraft. 
31 A.J.I.L. Supp. 182 (1937). 

128 The full text of art. 22 appears in the text of Ch. Ill accompanying note 114. 

129 See the text accompanying notes 86, 87 supra. 

130 On the Nyon Agreement see generally 2 Hackworth 692-95. 

131 1 Oppenheim-Lauterpacht, International Law: Peace 613 (8th ed. 1955) and 
Padelford, op. cit. supra note 124 view it as a proper extension of piracy. The con- 
trary view appears in Anonymous, "The Nyon Arrangements: Piracy by Treaty?" 
19 Brit. Y.B.I.L. 198 at 207-08 (1938) and Genet, "The Charge of Piracy in the 
Spanish Civil War," 32 A.J.I.L. 253 at 263 (1938). 



49 

acceptance of the British juridical claim to make submarines and their 
personnel unlawful combatants. 1 ' 



L32 



b. THE UNDECLARED ATLANTIC NAVAL WAR (1941) 

On September 4, 1941 the United States destroyer Greer, en route 
to Iceland, was the object of an unsuccessful torpedo attack by a sub- 
merged German submarine. 133 President Roosevelt stated that, "This was 
piracy, legally and morally" 134 and "when you see a rattlesnake poised to 
strike, you do not wait until he has struck before you crush him." 135 The 
President described the German attack as an aggression against "the free- 
dom of the seas" 136 and stated that the United States would continue to 
defend this freedom by ordering the U.S. Navy to attack German or Italian 
vessels which entered "waters the protection of which is necessary for 
American defense . . . ." 137 

The United States claim enunciated by President Roosevelt has been 
described as a defense measure against piratical attacks which were con- 
trary to international law. 138 The use of the piracy terminology could be 
construed as a claim to deprive the particular submarine personnel of 
status as lawful combatants. In view of the context, including the lack of 
a declared war, it is probably more plausible to interpret the President's 
piracy wording as a part of a claim for the U.S. Navy to initiate attack in 
appropriate circumstances. Professor Lauterpacht, however, has approved 
the United States claim as a claim concerning piracy and stated: 

There is substance in the view that, by continuous usage, the notion 



133 In view of the prior French role in preserving the lawful combatant status of 
submarines, French agreement alone would have been significant. In addition to 
France and the United Kingdom the parties to the Agreement were : Bulgaria, Egypt, 
Greece, Roumania, Soviet Union, Turkey, and Yugoslavia. The Nyon Agreement 
cited supra note 126 at 8-9, 31 A.J.I.L. Supp. 179 at 181 (1937). 

133 Factual description appears in Karig, Battle Report: The Atlantic War 67-70 
(1946). 

It should be noted that the Greer was a 1,200 ton flush deck four pipe World War 
I destroyer of the same type as the fifty U.S. destroyers transferred to the United 
Kingdom in 1940 pursuant to the Churchill-Roosevelt Agreement. From a tactical 
standpoint it is thus possible that the attacking German submarine could have 
mistaken the Greer for a British destroyer. The Churchill-Roosevelt Agreement is set 
forth in 34 A.J.I.L. Supp. 183 (1940). Commentary appears in Borchard, "The 
Attorney General's Opinion on the Exchange of Destroyers for Naval Bases," 34 
A.J.I.L. 690 (1940) and Briggs, "Neglected Aspects of the Destroyer Deal," 34 
A.J.I.L. 569 (1940). 

134 Address by the President (Sept. 11, 1941), U.S. Naval War College, Interna- 
tional Law Documents 1941 15 (1943). 

™Id. at 22. 

136 Id. at 19. 

137 Id. at 24. 

138 Oppenheim-Lauterpacht, op. cit. supra note 131 at 613. 



50 

of piracy has been extended from its original meaning of predatory 
acts committed on the high seas by private persons and that it now 
covers generally ruthless acts of lawlessness on the high seas by whom- 
soever committed. 139 

c. THE PARTIAL "ABOLITION" OF SUBMARINES (1945) 

During the Second World War submarines with increased efficiency 
were employed by, inter alia, Germany, the United States, and the United 
Kingdom. The principal claims and counterclaims relating to submarines 
concerned other legal issues than combatant status. 

At the close of World War II the remaining German and Japanese 
submarines were destroyed or divided among the principal victorious 
Allies. 140 In 1966 the German Federal Republic 141 had submarines but 
apparently East Germany did not. In 1966 both Japan 142 and Italy 143 
had submarines. 

d. THE INTERNATIONAL MILITARY TRIBUNAL AT 
NUREMBERG (1946) 

Admiral Donitz, who was one of the defendants in the trial before 
the International Military Tribunal at Nuremberg, had served first as head 
of the German submarine arm and then as commander in chief of the 
Navy. 144 The argument of his counsel to the Tribunal referred briefly to 
the retention of an "effective weapon" : 

The prosecution will perhaps take the standpoint that, in lieu of 
this [use of submarines inconsistent with article 22 of the London 
Naval Treaty of 1930], submarine warfare against armed merchant 
vessels should have been discontinued. In the last war the most ter- 
rible weapons of warfare were ruthlessly employed by both sides on 
land and in the air. In view of this experience the thesis can hardly 
be upheld today that in naval warfare one of the parties waging war 
should be expected to give up using an effective weapon after the 
adversary has taken measures making the use of it impossible in its 
previous form. 145 

The Tribunal's Judgment applicable to Admiral Donitz did not respond 
expressly to the quoted claim. It is clear, however, that the Tribunal re- 
garded submarines as lawful combatants. Its analysis was limited to other 



139 Id. at 613-14 (footnotes omitted). 

140 A Decade of American Foreign Policy, Basic Documents, 1941-49, S. Doc. No. 
123, 81st Cong., 1st Sess. 41 (1950). 

^lane's Fighting Ships 1965-66 103; Les Flottes de Combat 1966 45-46. 
^Jane's Fighting Ships 1965-66 160; Les Flottes de Combat 1966 275. 

143 lane's Fighting Ships 1965-66 147; Les Flottes de Combat 1966 264-65. 

144 1 I.M.T. 310. 

145 18 I.M.T. 315. 



51 

legal issues than combatant status but these other issues could not have been 
considered as they were except upon the implicit holding of the lawful 
combatant status of submarines. 146 Apparently no question was raised 
concerning the lawful combatant status of military aircraft and their 
personnel. 147 

C. SUBMARINES AS LAWFUL COMBATANTS 

The rejection of the claims to abolish the submarine have confirmed 
its lawful combatant status. In the same way the limitation of the sub- 
marine by international agreement where other types of warships were 
subject to analogous restriction has also recognized the lawful combatant 
status of submarines and their personnel. Even the attempt to make sub- 
marines conditional unlawful combatants, as where they fail to comply 
with particular rules concerning action against merchant ships, has been 
dropped. 

Combat interactions between submarines and merchant ships character- 
ized both World Wars. It is important, therefore, to examine briefly the 
combatant status of merchant ships and their personnel. The Geneva Con- 
ventions of 1949 accord prisoner of war status and thus status as lawful 
combatants to the personnel of belligerent merchant ships. 148 The Geneva 
Sea Convention includes among those entitled to prisoner of war status: 

Members of crews, including masters, pilots and apprentices, of the 
merchant marine and the crews of civil aircraft of the Parties to the 
conflict, who do not benefit by more favourable treatment under any 
other provisions of international law. 149 

It is particularly significant that merchant seamen are accorded prisoner 
of war status without regard to whether their ships are armed or not. In 
the same way no qualification is made concerning the action of merchant 
ships and, consequently, even Captain Fryatt, 15 ° who attempted to ram a 
German submarine, would now be entitled to prisoner of war status. Thus, 
the personnel of belligerent merchant ships are now entitled to prisoner of 
war status like the personnel of belligerent submarines. 



146 1 I.M.T. 310-15. 

147 See the judgment concerning Marshal Goring, the commander in chief of the 
German Air Force. 1 I.M.T. 279-82. 

148 To state that merchant ships and their personnel are lawful combatants is not to 
state that they are entitled to initiate attack against the enemy as if they were war- 
ships. As a tactical matter such initiation of attack is unlikely anyway. See Colombos 
479-82 and Bellot, "The Right of a Belligerent Merchantman to Attack," 7 Grotius 
Trans. 43 (1922). 

Art. 13(5). The same provision appears in the Geneva Prisoners of War Con- 
vention art. 4(5). 

160 See the text accompanying notes 27-30 supra. 



52 

1. General War 

The submarine's status as lawful combatant has been retained because 
of the national interests or supposed national interests of some of the 
major naval powers and particularly of France. 151 These national interests 
have included the use of the submarine as a militarily efficient warship 
and, particularly, its use in general war. The United States and the United 
Kingdom have upon occasion agreed to abolition of the submarine condi- 
tioned upon the agreement of other powers. The same two states, however, 
later manifested their national interests by employing submarines in general 
war. 

In the contemporary era of nuclear armed and propelled submarines 
there are no governmental proposals to abolish the submarine. 152 The 
principal thrust of contemporary disarmament proposals is directed at 
nuclear and thermonuclear weapons. 153 These are the weapons which 
comprise the principal military capability of fleet ballistic missile sub- 
marines. Effective nuclear disarmament would not, however, deprive sub- 
marines of lawful combatant status. Thus, for the foreseeable future, 
submarine warships and their personnel will continue to have status as 
lawful combatants. 

2. Limited War 

It is clear that submarine warships and their personnel have the same 
de jure status as lawful combatants in limited war which they have in 
general war. Nevertheless, the strategic and tactical uses of submarines as 
a component of naval power may be expected to be considerably less in 
limited wars than in general wars. Professor Halperin has stated: "Sub- 
marines have not been used extensively, if at all, in local wars . . . ." 154 
Apparently submarines were not used in the Korean War. The Soviet 
Union, which was in effect fighting the war by proxy, 155 did not directly 
employ its submarines even though they could have constituted a major 
threat to the seaborne logistic support of the United Nations command. 
The United States, which also sought to limit the war in other ways, did 



151 See Royse 19-20. 

152 Gaddis Smith, Britain's Clandestine Submarines, 1914-1915 (1964) describes 
the secret shipping of submarine sections from the neutral United States to belliger- 
ent Canada where they were assembled and completed. This suggests that if inter- 
national abolition of submarines were to be successful it would require effective 
international inspection. 

15,5 See generally U.S. Arms Control and Disarmament Agency, Agenda Item — 
Peace (1964) \-Arms Control: Issues for the Public (Henkin ed. 1961). 

154 See Garthoff 114. 

155 Halperin, Limited War in the Nuclear Age 35 ( 1963). 



53 

not employ its submarines. 156 There is no indication that submarines have 
been used in the war in Vietnam. 

The result is that, although submarines are de jure entitled to combatant 
status, they are not extensively employed in limited war. The nonuse, or 
at the most the very restricted use, of submarines is one way of keeping a 
war limited. 157 Where the submarine is used for the same general purposes 
for which surface warships are used, as for gun bombardment of the shore, 
there is no reason that such action should increase the intensiveness or 
extensiveness of a limited war. 



156 Cagle & Manson do not record the use of United States submarines. 

157 Osgood 241—43 stresses the importance of limiting "military means." 



CHAPTER III 

CLAIMS CONCERNING LAWFUL AREAS OF 
OPERATION: SUBMARINE OPERATIONAL AREAS 

In times of relatively low coercion the high seas are an international 
resource open to the peaceful uses of all states. The community policies 
reflected in the legal doctrines of the law of the sea in time of peace are 
designed to encourage the most comprehensive shared used and exploitation 
of the high seas. 1 One of the principal uses of the sea has been described 
by Admiral Mahan: 

The first and most obvious light in which the sea presents itself 
from the political and social point of view is that of a great highway; 
or better, perhaps, of a wide common, over which men may pass in 
all directions, but on which some well-worn paths show that control- 
ling reasons have led them to choose certain lines of travel rather 
others. 2 

In times of relatively high coercion and violence the legal doctrines 
permit belligerents to conduct hostilities upon the high seas which are the 
same areas permitted to neutral states for trade and other uses. It is ap- 
parent that these conflicting uses in times usually called war will bring 
about claims by belligerents against neutrals and by neutrals against bellig- 
erents. It is a principal purpose of the international law concerning high 
seas operational areas to resolve these claims. Another principal purpose 
of this branch of law is to resolve interbelligerent claims concerning the 
use of high seas operational areas as a distinct method of conducting 
hostilities. 

It is well established doctrine that lawful naval combatant forces are 
legally permitted to operate on the high seas as well as in the territorial 



1 The textual statement is implicit in the literature: 4 Whiteman 499-739; Colom- 
bos 1-431; 1 Oppenheim-Lauterpacht, International Law: Peace 582-635 (8th ed. 
1955) ; 2 Hackworth 651-759. The statement is documented in McDougal & Burke, 
The Public Order of the Oceans: A Contemporary International Law of the Sea 
(1962). 

For a future projection see Burke, Ocean Sciences, Technology, and the Future 
International Law of the Sea ( 1 966 ) . 

2 Mahan, The Influence of Sea Power upon History 1660-1783 25 (25th ed. 
1916). 

55 



56 

waters and the internal waters of belligerents. 3 Such operations are forbid- 
den in neutral territorial waters. 4 This prohibition is conditioned upon the 
mutual observance of such neutral immunity by both naval belligerents. 5 
The principal claims and controversies concerning areas of operation in 
modern naval warfare, both between belligerents and neutrals and inter- 
belligerent, have been connected with the lawfulness of operational areas 
enforced, inter alia, by submarines, aircraft, and mines. 

As employed by both sides during the World Wars, operational areas 
were directed at the enemy belligerent and also at neutrals who traded 
with the enemy. As to the enemy, the claim was to the employment of a 
particularly severe method of naval warfare, frequently involving sinking 
of all enemy vessels upon sight, within the specified area. As to neutrals, 
the claim was to prevent neutral commerce with the enemy by excluding 
neutral ships from the use of the operational area except use which is con- 
trolled by the claimant-belligerent. Operational areas enforced by sub- 
marines have been one of several methods of conducting economic warfare 
against the enemy through control of the neutrals. 6 

A. THE ECONOMIC WARFARE CONTEXT OF CLAIMS TO 
ESTABLISH OPERATIONAL AREAS IN GENERAL WAR 
SITUATIONS 

Economic warfare is, of course, designed to have an adverse impact 
upon the enemy belligerent. Neutral states constitute the vital external 
source of supply for the enemy belligerent. Consequently, economic war- 
fare measures directed against neutral states have an impact upon the 
enemy belligerent. 7 

The belligerent claim to control or prohibit economic intercourse with 
the enemy involves the carrying out of three separate functions. The first 
is the characterization of the goods to be prohibited or controlled and it 
includes examining the relation of the goods to the military power of the 



3 Stone 571 ; Law of Naval Warfare section 430. 

4 Ibid. Article V of Hague Convention XIII provides: "Belligerents are forbidden 
to use neutral ports and waters as a base of naval operations. . . ." 

5 The principal example of World War II is the Altmark case: Colombos 600-01; 
McDougal & Feliciano 454-56; Oppenheim-Lauterpacht 693-95; 7 Hackworth 
568-75. See Waldock, "The Release of the Altmark's Prisoners," 24 Brit. Y.B.I.L. 
216 (1947). The principal example of World War I is the Dresden case: Colombos 
600; Oppenheim-Lauterpacht 755; 7 Hackworth 370-72. 

See the astonishing suggestion by the Chairman of the United States Delegation 
to the Geneva Conference on the Law of the Sea (1958) that belligerent submarines 
could operate in neutral territorial waters "practically inviolable" from surface war- 
ships in Dean, "The Geneva Conference on the Law of the Sea: What Was Accom- 
plished," 52 A.J.T.L. 607, 610-11 (1958). 

6 The various methods of economic warfare are described in 1 and 2 Medlicott. 

7 See e.g. 1 Medlicott 468-508. 



57 

enemy. 8 The traditional doctrines distinguishing between "free goods," 
"conditional contraband," and "absolute contraband" were designed to 
facilitate this characterization. 9 "Free goods" were those deemed to be 
incapable of military use. "Conditional contraband" covered goods which 
could be used for military or civilian purposes and it was usually necessary 
also to show their military destination before they could be controlled or 
prohibited. "Absolute contraband" was limited to goods which were spe- 
cialized for military uses. In a war situation in which major powers remain 
neutral, it may be expected that belligerent characterization of goods will 
take account of neutral interests in maintaining trade with the enemy 
belligerent. In situations of general war, such as the two World Wars, the 
contraband lists became more comprehensive as neutral interests and in- 
fluence declined. 1 . It is impossible to avoid the conclusion that belligerent 
decisions in this field are determined in substantial part by neutral power 
and purpose. 11 

The second function is the actual stopping of the flow of neutral goods 
imported by the enemy. 12 In addition, based upon the practice of the two 
World Wars, it now involves stopping the flow of enemy exports to neutrals 
as well. 13 The principal objective in stopping enemy exports has been to 
prevent the enemy from earning foreign exchange credits. The range of 
methods employed by belligerents to stop economic intercourse with the 
enemy has been very great. Traditionally it involved visit and search 14 
and capture of suspected individual vessels and the use of "close-in" naval 
blockades. 15 In the World Wars it included the occasional use of the 
methods just mentioned and also extended to "long-distance" naval block- 
ades and high seas operational areas or "war zones" as well as to compre- 
hensive administrative techniques of economic warfare 16 which changed 
the locus of enforcement from the high seas to the docks. 

The third function is the disposition of the goods and of the vessel or 



8 Colombos 633-57; McDougal & Feliciano 481-88; Oppenheim-Lauterpacht 
799-813; 7 Hackworth 14-99. 

! * The distinctions are articulated in Grotius, De Jure Belli ac Pads Libris Tres, Bk. 
Ill, Ch. I, section 5, 2 Classics of International Law 602 (Kelsey transl. 1925). 

10 Seymour, American Diplomacy During the World War 32-34 (1934). 

11 See Buehrig 85-105 (Ch. 5 entitled "The Defense of Trade") (1955). See 
generally Percy, Maritime Trade in War (1930). 

12 Colombos 672-752; McDougal & Feliciano 488-509; Oppenheim-Lauterpacht 
768-90, 848-68. 

"McDougal & Feliciano 501-07; 1 Medlicott 112-24. 

4 The procedures of visit and search are described in Harvard Research, Naval 
War 535-47. The black letter summary of visit and search in the Harvard Research 
is quoted in the text of Ch. IV, section A. 

15 Traditional blockades are described in Tucker 283-95. 

1fl Such techniques are described in 1 Medlicott 415-29. See also Y. Wu, Economic 
Warfare passim ( 1 952 ) . 



58 

aircraft carrying them. 17 The extreme alternative courses of action are 
release of the goods and craft on the one hand and destruction without 
warning on the other. It is obviously in the interests of a belligerent capa- 
ble of rational calculations of self-interest to condemn the goods and the 
carrier and requisition them for his own purposes wherever possible. 18 

The present chapter focuses upon the second of the above described 
functions of economic warfare, stopping the flow of commerce between 
neutrals and the enemy belligerent, and particularly upon submarine op- 
erational areas as a method of accomplishing this. It should be recognized 
that all of the economic control methods, ranging from occasional visit 
and search to submarine operational areas and comprehensive administra- 
tive techniques applied at the source, are but different methods of achiev- 
ing the central objective of stopping neutral commerce with the enemy 
belligerent which may benefit the latter. 19 In selecting particular methods 
of economic control, a belligerent must take into account its economic and 
military resources including the kind of naval power which it has. A 
belligerent with predominantly surface naval power usually selects a 
method of stopping commerce with the opposing belligerent which can be 
made effective by surface naval power. In the same way, a belligerent 
which does not command the surface of the sea but which has effective 
submarine naval power, Germany being the obvious example, is compelled 
to select a method of commerce interdiction which can be enforced by 
submarine naval forces. 20 

In selecting particular economic control methods there are certain tra- 
ditional modes of stopping commerce with the enemy which must be 
avoided by surface and submarine naval powers alike because of the 
technical conditions of modern warfare. Specifically, the traditional pro- 
cedures of visiting and searching a suspected merchant vessel on the high 
seas are inconsistent with the elementary requirements of self-preservation 
for both surface and submarine warships. 21 The surface warship which 
attempts to follow these procedures becomes particularly vulnerable to 
submarine and air attack. The submarine, during the World Wars, was 
even more vulnerable to these types of attack. In addition, the submarine 
which attempted to lower a boat for visit and search was vulnerable to 
attack by ramming and gunfire from merchant ships. 



17 Colombos 758-83; Oppenheim-Lauterpacht 869-79; Rowson, "Prize Law During 
the Second World War," 24 Brit. Y.B.I.L. 160 (1947) ; Fitzmaurice, "Some Aspects 
of Modern Contraband Control and the Law of Prize," 22 Brit. Y.B.I.L. 73 (1945). 

18 Phillips, "Capture at Sea in Perspective," 91 Nau. Inst. Proc. No. 4, p. 60 (1965) 
sets forth the interest in capture as opposed to sinking. 

19 See McDougal & Feliciano 479. 

10 The German reasons for resorting to the use of submarines against commerce are 
set forth in Scheer, Germany's High Sea Fleet in the World War 215-58 (1920). 
21 See 7 Hackworth 6. 



59 

It is impossible to conduct anything but the most superficial search 
of a large merchant vessel at sea whether the warship attempting to make 
the search is a surface or submarine one. The surface naval powers, in 
consequence, adopted the technique of diversion during the World Wars. 22 
Under this technique a suspected merchant vessel was diverted to a des- 
ignated control port where a comprehensive examination of the cargo 
could be made. This technique was not available to a submarine naval 
power since its exercise was dependent upon control of the surface of 
the sea. 

The time-honored "close-in" naval blockade involved the use of sta- 
tionary or slowly cruising warships immediately off the coast of the 
blockaded state. 23 This type of blockade was not employed by any naval 
belligerent against any major enemy naval power during the World 
Wars. 24 It is obvious that the blockading vessels would have been sub- 
jected to the same type of dangers involved in attempting to visit and 
search. 25 In response to the dangers of employment of submarines, mines, 
and aircraft, and to the requirements of effective economic warfare, the 
surface naval powers employed the so-called "long-distance" blockade 
against Germany. 26 The actual naval enforcement of the blockade against 
Germany consisted of patrolling strategic high seas passages on the routes 
to Germany at some distance from Germany itself. 27 In performing this 
task the surface naval powers were in a position to rely primarily upon 
surface rather than upon submarine warships. The surface warships were 
usually supplemented by other means including mines and aircraft. 

The long-distance blockade enforced in the manner described was 



22 See id. at 182-201. 

The legality of diversion is maintained in Garner, "Violations of Maritime Law by 
the Allied Powers during the World War," 25 A.J.I. L. 26 (1931). It is denied in 
Warren, "Lawless Maritime Warfare," 18 Foreign Affairs 424 (1940). 

23 The requirements for lawfulness of such blockades were : ( 1 ) the juridical com- 
petence to establish the blockade possessed by the belligerent government; (2) the 
formal declaration of establishment and its communication to neutrals; (3) "effec- 
tiveness" in the sense of reasonably efficient enforcement as opposed to a "paper" 
blockade. Tucker 287-89; 7 Hackworth 114-34. 

24 In World War I close-in blockades were employed against German East Africa, 
the Cameroons, portions of Asia Minor, Kiauchau in China, and some other coasts 
without modern defenses. 2 Garner 318-19. In the Russo-Finnish War of 1939 the 
Soviet Union employed a close-in blockade. McDougal & Feliciano 491. The mod- 
ern impracticability of such blockades is stressed in Golombos 693. 

26 Blockade in the strict legal use of the term — that is, the close investment of 
the enemy's coasts or ports — was regarded as scarcely practicable under modern 
conditions of warfare. . . . 
1 Medlicott 23. 

26 A classic study of the World War I blockade is Guichard, The Naval Blockade 
1914-1918 (Turner transl. 1930). See also Parmelee, Blockade and Sea Power 
(1924); Malkin, "Blockade in Modern Conditions," 3 Brit. Y.B.I.L. 87 (1923). 

27 E.g. the passage between the Shetland Islands and Iceland. Roskill 37. 



60 

a method of commerce interdiction which was not available to Germany 
because of its lack of surface naval power. In response to the same realities 
of modern naval warfare which brought about the employment of the 
long-distance blockade, Germany developed the operational area enforced 
by submarines as its preeminent method of interdicting commerce with 
the United Kingdom. 28 For a time during the First World War, Germany 
attempted to apply differential treatment to enemy and neutral merchant 
ships in the prescribed area. Only the enemy merchant ships were sunk 
without warning and, in theory at least, the neutrals were spared this fate. 29 
Because of the tactical difficulty, and indeed impossibility in many situa- 
tions, of a submarine attempting to distinguish between neutral and enemy 
merchant vessels, the attempt was doomed to failure. Germany was pre- 
sented with the dilemma whereby it either had to abandon submarine 
enforcement of its areas for all ships or apply that enforcement to all ships 
including neutrals. The German dilemma is reflected in the considerable 
diplomatic correspondence between Germany and the United States while 
the latter was a neutral. 30 

The long-distance blockade was employed in both World Wars as a 
part of the comprehensive system of Allied economic warfare. The follow- 
ing conception of such economic warfare, with specific reference to the 
Second World War, is provided by Professor Medlicott: 

Economic warfare is a military operation, comparable to the opera- 
tions of the three Services in that its object is the defeat of the enemy, 
and complementary to them in that its function is to deprive the enemy 
of the material means of resistance. But, unlike the operations of the 
Armed Forces, its results are secured not only by direct attack upon 
the enemy but also by bringing pressure to bear upon those neutral 
countries from which the enemy draws his supplies. It must be dis- 
tinguished from coercive measures appropriate for adoption in peace 
to settle international differences without recourse to war, e.g., sanc- 
tions, pacific blockade, economic reprisals, etc., since, unlike such 
measures, it has as its ultimate sanction the use of belligerent rights. 31 
It should not be supposed that either the long-distance blockade or 
comprehensive economic warfare was only a British concern. A study with 



28 Factual description appears in Gibson & Prendergast, The German Submarine 
War 1914-1918 (1931). 

29 See the text accompanying notes 46—48 infra. 

30 The diplomatic correspondence appears in: [1917] Foreign Rel. U.S. Sup p. No. 
1 (1931); [1916] Foreign Rel U.S. Supp. (1929); [1915] Foreign Rel. U.S. Supp. 
(1928). Critical analysis appears in Buehrig passim. 

31 1 Medlicott 1 7. The term "economic warfare" was planned as comprehensive 
and covering the entire field. Id. at 12-17. Narrower terms such as "blockade" were 
rejected as "out of date and inadequate" in reflecting the activities involved. Id. at 
16. The "economic blockade" subject of Professor Medlicott's two volumes is but a 
part of "economic warfare." Id. at 17. 



61 

specific reference to the First World War has described the role of the 
United States: 

[Ojf all the nations engaged in the World War none was more ready to 
make full use of its own economic power than the United States. 
When the United States entered the war one of the first demands 
which she made on Britain and the other allies was that they should 
enforce a still more complete embargo on exports from their terri- 
tories to doubtful destinations in Europe than they had previously 
thought it necessary to impose, and she herself for many months stop- 
ped all exports whatsoever, both to the Scandinavian countries and 
to Holland. She had made bitter complaints against the blacklisting 
by the British government of German firms in South and Central 
America, but as soon as she entered the war she carried the blacklist 
policy even farther on her own initiative. She has never admitted 
complicity with the action of the British navy against neutral trade, 
even after the American navy was patrolling the seas side by side 
with the British navy, but in the use of the economic resources of the 
allied and associated Powers as bargaining counters and as means of 
bringing pressure to bear on neutral countries, she not only eagerly 
accepted the position of an accomplice, but even took the lead in 
giving this kind of economic weapon a keener edge and in wielding 
it more effectively. 32 

Consistent with the comprehensive conception of economic warfare, it 
is significant that the belligerent objective of completely interdicting com- 
mercial intercourse between the enemy belligerent and neutrals is now 
widely accepted as lawful in general war. 33 This reflects the actual economic 
warfare techniques of the World Wars and changes the focus of legal anal- 
ysis from the objective itself to the various methods of achieving it. In 
particular, the legality of the operational area enforced by submarines has 
been questioned. The appraisal of such areas under law is made in the 
balance of this chapter. 

B. CLAIMS TO ESTABLISH SUBMARINE OPERATIONAL 
AREAS IN GENERAL WAR SITUATIONS 

The German claims are considered at the outset since they were first 
in time and are of central importance for legal appraisal. 



™ Percy, Maritime Trade in War 58, 59 (1930). 

In 1946 the United States Government abandoned a plan to write the history of 
the American role in economic warfare. 2 Medlicott x. The Medlicott study, however, 
is also valuable in describing the American role. See e.g. id. at 19-25; 26-62. 

•' 4 •' , Golombos 509-10; McDougal & Feliciano 478-79; Stone 508-10; Oppenheim- 
Lauterpacht 796-97. Professor Lauterpacht refers to the diminished "cogency of the 
claim of neutrals to unimpeded commercial intercourse with the belligerents." Oppen- 
heim-Lauterpacht 796, n. 1. 



62 

1. German Claims 

a. THE FIRST WORLD WAR 

On February 4, 1915 Germany proclaimed an "area of war" in the 
waters surrounding Great Britain and Ireland. 34 The Chancellor's Pro- 
clamation transmitted by the German Ambassador in Washington to the 
U.S. Secretary of State invoked retaliation against Great Britain. 35 In 
relevant part it provided : 

Just as England has designated the area between Scotland and 
Norway as an area of war, so Germany now declares all the waters 
surrounding Great Britain and Ireland including the entire English 
Channel as an area of war, and thus will proceed against the shipping 
of the enemy. 

For this purpose beginning February 18, 1915 it will endeavor to de- 
stroy every enemy merchant ship that is found in this area of war with- 
out its always being possible to avert the peril, that thus threatens 
persons and cargoes. Neutrals are therefore warned against further 
entrusting crews, passengers and wares to such ships. Their attention 
[is] also called to the fact, that it is advisable for their ships to avoid 
entering this area, for even though the German naval forces have in- 
structions to avoid violence to neutral ships in so far as they are re- 
cognizable, in view of the misuse of neutral flags ordered by the 
British Government and the contingencies of naval warfare their be- 
coming victims of torpedoes directed against enemy ships cannot al- 
ways be avoided ; at the same time it is specifically noted that shipping 
north of Shetland Islands in the eastern area of the North Sea and in 
a strip of at least thirty sea miles in width along the Netherlands 
coast is not imperiled. 36 

It should be noted that submarine enforcement was not mentioned. 
Since the German Navy lacked the power to provide enforcement by sur- 
face warships (except on an occasional basis), submarine enforcement 



34 [1915] Foreign Rel. U.S. Supp. 95 (1928). 

35 The retaliation was in response to the British "area of war" of Nov. 3, 1914 
which was, in turn, in retaliation for alleged illegal German minelaying. The British 
area appears in [1914] Foreign Rel. U.S. Supp. 463 (1928). Its central paragraph 
provides : 

They therefore give notice that the whole of the North Sea must be considered 
a military area. Within this area merchant shipping of all kinds, traders of all 
countries, fishing craft, and all other vessels will be exposed to the gravest 
dangers from mines which it has been necessary to lay and from warships 
searching vigilantly by night and day for suspicious craft. 

Id. at 464. Safe routes were prescribed for neutral vessels. Ibid. 

In the note of Nov. 10, 1914 from the Secretary of State to the U.S. minister in 

Norway the United States refused to join other neutrals in protesting the British zone. 

[1914] Foreign Rel. U.S. Supp. 466 (1928). 

36 [19\5] Foreign Rel. U.S. Supp. 95,96 (1928). 



63 

was implicit. Further, the Proclamation was directed at "enemy" but not 
at neutral merchant shipping and safe areas were designated for the 
latter. 37 Because of the difficulties encountered by submarines in attempt- 
ing to distinguish neutrals from belligerents, neutral merchant ships were 
sunk in the "area of war." Neutrals, particularly the United States, claimed 
the illegality of the submarine operational area. This resulted in German 
Government vacillation in the actual application of submarine enforce- 
ment in the area. 38 

The British merchant vessel Lusitania (unarmed but carrying munitions 
from the United States to the United Kingdom) was torpedoed in the 
operational area on May 7, 1915 with considerable loss of American as 
well as British lives. 39 There followed a year of claim and counterclaim 
between the United States and Germany in which the United States main- 
tained the position that nothing in the accepted principles of international 
law or in any proper extension of them justified the sinking of belligerent 
merchantmen transporting neutral passengers in the German operational 
area. 40 The German Government's note of May 4, 1916 to the United 
States stated: 

In accordance with the general principles of visit and search and 
destruction of merchant vessels recognized by international law, such 
vessels, both within and without the area declared as naval war zone, 
shall not be sunk without warning and without saving human lives, 
unless these ships attempt to escape or offer resistance. 41 

w 7T w w w w *3r 

The German submarine forces have had, in fact, orders to conduct 
submarine warfare in accordance with the general principles of visit 
and search and destruction of merchant vessels as recognized by 
international law, the sole exception being the conduct of warfare 
against the enemy trade carried on enemy freight ships that are 
encountered in the war zone surrounding Great Britain . . . , 42 

This was nothing less than German agreement with the major conten- 
tions of the United States. Specifically, Germany conceded that even in 
the "war zone" unarmed belligerent merchantmen with the sole exception 
of cargo ships (as opposed to passenger ships) were to be accorded treat- 
ment by submarines in accordance with the traditional rules of interna- 
tional law regulating attack by surface warships. This amounted to a 



37 Compare with the text Colombos 488. 
as Potter & Nimitz 456-58 (1960). 
39 [1915] Foreign Rel. U.S. Supp. 384 (1928). 

*° The United States made demand to Germany for disavowal, reparation, and 
assurances in its note of May 13, 1915. Id. at 393-96. 

41 [1916] Foreign Rel. U.S. Supp. 257, 259 (1929). 

42 Id. at 257. 



64 

withdrawal of the German operational area claim of February 4, 1915 
as to belligerent unarmed passenger vessels. 

The termination of the German submarine operational area does not 
necessarily lead to the conclusion that the German position was untenable 
in law. Its significance was that Germany was not prepared to maintain 
its legal position at the risk of war with the determined and powerful 
neutral United States. 43 Even though Germany admitted its willingness 
"to use the submarine weapon in strict conformity with the rules of inter- 
national law as recognized before the outbreak of the war," the note speci- 
fically referred to the objective of the United States obtaining British 
adherence to the traditional rules. The note concluded by stating that if 
the United States were not successful in this objective, Germany "would 
then be facing a new situation in which it must preserve [for] itself com- 
plete liberty of decision." 44 It is well known that the United States had 
no more success in modifying the British long-distance naval blockade 
after May 4, 1916 than it had achieved before then. The real issue con- 
fronted by the German decision-makers did not include the possibility of 
modification of the increasingly successful British methods of economic 
warfare. The central issue was whether Germany would abandon the use 
of submarine operational area warfare or risk war with the United States. 45 
It might have been militarily advantageous to Germany to make the deci- 
sion in 1916 but it was nevertheless delayed until 1917. 

The German "unrestricted" submarine warfare claim within a prescribed 
operational "zone" was set forth in enclosures to a message of January 31, 
1917 from the German Ambassador in Washington to the U.S. Secretary 
of State: 

Germany has, so far, not made unrestricted use of the weapon which 
she possesses in her submarines. Since the Entente powers, however, 
have made it impossible to come to an understanding based upon 
equality of rights of all nations, as proposed by the Central powers, 
and have instead declared only such a peace to be possible which shall 
be dictated by the Entente allies and shall result in the destruction 



43 In Prof. Buehrig's view the United States demands on Germany following the 
Lusitania sinking "left no recourse except war, should Germany fail to keep the 
submarine within bounds acceptable to the United States." Buehrig 126. 

44 [1916] Foreign Rel. U.S. Supp. 257, 260 (1929). 

In acknowledging that the German operational area policy announced on Feb. 4, 
1915 was "now happily abandoned" the United States rejected the suggestion in the 
German note that the changed German policy was contingent upon the successful 
outcome of negotiations between the United States and the United Kingdom designed 
to maintain the traditional United States rights as a neutral against the British. The 
United States note of May 8, 1916 added: "Responsibility in such matters is single, 
not joint; absolute, not relative." Id. at 263. 

45 On the military and political factors in the decision see Buehrig 71-75; Millis, 
The Road to War: America 1914-1917 354-82 (1935). 



65 

and humiliation of the Central powers, Germany is unable further 
to forego the full use of her submarines .... 

Under these circumstances Germany will meet the illegal measures of 
her enemies by forcibly preventing after February 1, 1917, in a zone 
around Great Britain, France, Italy, and in the eastern Mediterranean 
all navigation, that of neutrals included, from and to England and 
from and to France, etc., etc. [sic] All ships met within that zone will 
be sunk. 46 

This claim was expressly directed against neutrals as well as belligerents. 
It specifically invoked submarine enforcement. American passenger ships 
were permitted to sail once a week in each direction between the United 
States and the United Kingdom provided that the United States Govern- 
ment guaranteed that no contraband according to the German list was 
carried. 47 Its juridical basis was not a claim of legal right but was rather 
stated to be a legitimate reprisal measure based upon alleged British 
violations of international law. It is well known that the present German 
claim provided the ostensible basis for the participation of the United 
States as a belligerent. 48 

(1) Appraisal as Reprisal 

Initial appraisal should be made in terms of reprisal since it was 
invoked. In addition, some writers regard reprisal as central to the legal 
analysis of this subject. For example, Professor Tucker states : 

[I]t does not appear possible to assert that — apart from reprisal — bel- 
ligerents have at present the right to restrict the movement of neutral 
vessels within vast tracts of the open seas merely by proclaiming that 
these areas have been rendered dangerous — in one form or an- 
other — to neutral shipping. Hence, despite bellgerent [sic] practices 
in two wars the establishment of war zones forms a lawful measure 
only when taken in response to the persistent misconduct of an 
enemy. 49 

In typical formulation reprisals are acts of retaliation undertaken 
through a course of conduct, otherwise unlawful, employed by one belli- 
gerent against the enemy belligerent for acts committed by the latter 
contrary to the law of war. 50 The object of reprisals is deemed to be 
inducing the enemy to abandon its illegal methods of warfare. Appraisal 



46 [1917] Foreign Rel. U.S.Supp.No. 1 97, 100 (1931). 

"Id. at 102. 

'" Beuhrig passim sets forth various bases including United States concern over a 
possible German victory. 

49 Tucker 305 (footnotes omitted). 

m Stone 353-56; Oppenheim-Lauterpacht 561-63. See the text of Ch. I accom- 
panying note 89. 



66 

of reprisals in the present context must, therefore, consider the major 
features of British naval warfare. 

The United Kingdom armed its merchant ships and issued instructions 
that they were to open fire upon German submarines. 51 These actions 
could be regarded as violations of the traditional law which only permits 
duly commissioned naval vessels to initiate attack. 52 It seems quite im- 
possible to maintain that such British merchant ship departures from or 
violations of the traditional law are valid while holding that German sub- 
marine departures from or violations of the same law are invalid. Con- 
sequently, sinking without further warning than that involved in notifica- 
tion of the operational area to British merchant ships may be justified as a 
legitimate reprisal. It should be noted that the specific modality of the 
reprisal, the submarine operational area, was directed particularly to these 
British merchant ship violations of the traditional law. 53 

It may be recalled that from a German perspective the British long- 
distance blockade was a "hunger blockade" since foodstuffs were not 
allowed through it to Germany. 54 In the British view, the traditional law 
required visit and search of merchant ships by submarines in order to 
protect "noncombatant" values. If this is accepted, it is difficult to avoid 
the conclusion that the same law also required maintenance of the distinc- 
tion between absolute and conditional contraband concerning the British 
blockade, thus permitting food shipments to German "noncombatants." 55 
It is concluded, therefore, that the actual British blockade methods also 



' 51 The most explicit evidence appears in the enclosures to the note of Feb. 14, 1916 
from the U.S. Ambassador in Berlin to the Secretary of State. The enclosures included 
British Government instructions to masters and gun crews of "defensively" armed 
merchant ships which were captured by Germany on the English steamer Woodfield. 
The instructions appear in [1916] Foreign Rel. U.S. Supp. 187, 191-98 (1929). See 
particularly id. at 196. The instructions are quoted in relevant part in the text of 
Ch IV, section B. 

6 " The ambivalence of the doctrinal formulations is adequately illustrated by 
Oppenheim-Lauterpacht 467-68: "Any merchantman of a belligerent attacking a 
public or private vessel of the enemy would be considered a pirate and treated as 
such . . ." but, "it was perfectly legitimate for merchantmen of the Allies to attempt 
to ram German submarines even if signaled to stop and submit to visitation." 

53 If reprisals are designed to induce the opposing belligerent to give up its unlaw- 
ful measures, it is desirable to direct the reprisals against the specific unlawful 
measures. See generally Oppenheim-Lauterpacht 563. 

54 Admiral Scheer provides illustration : 

When the starvation of Germany was recognised as the goal the British Govern- 
ment were striving to reach, we had to realise what means we had at our dis- 
posal to defend ourselves against this danger. England was in a position to exert 
enormous pressure. We could not count on any help from the neutrals. 
Germany's High Sea Fleet in the World War 219 (1920). 

50 It was indeed upon the civilian population that the [blockade] action of the 
Allies bore with the greatest weight, since Germany was able, thanks to her 



67 

provided adequate justification for the submarine operational area as a 
legitimate reprisal. 

In addition, it should be remembered that the British employed "Q- 
ships" as a ruse of naval warfare designed to entrap and destroy sub- 
marines. 56 These ships appeared to be innocent merchantmen but actually 
were warships with substantial armament. The extent of the "warning" 
they afforded to a submarine attempting to comply with the traditional 
law is that the British naval ensign was hoisted simultaneously with open- 
ing fire. 57 The signifiance of the Q-ships is that they made it impossible 
for submarines to attempt compliance with visit and search of merchant 
ships without regard to whether a particular merchant ship appeared to 
be armed or to have wireless equipment. If the Q-ships were a lawful ruse 
of war, it also can be maintained persuasively that the German use of a 
submarine operational area was a lawful measure. If, on the other hand, 
the employment of Q-ships was illegal, the submarine operational area 
may be deemed a legitimate reprisal to it. 

It should be mentioned that the British established the first modern 
operational area, designating the entire North Sea as "a military area," 
on November 3, 1914. 58 The German operational area may be justified 
as a legitimate reprisal to the British one. If the submarine operational 
area as a legitimate reprisal measure could be properly invoked against 
each of the particular British methods of naval war alone, it seems abun- 
dantly clear that it was justified by the combination of them. 

Consideration should also be given to the validity of the German opera- 
tional area as a reprisal affecting neutrals. The position of the United 
States, while a neutral, was that interbelligerent reprisals could not affect 
the rights of neutrals. 59 It is difficult to see how the United States could 



energy and ingenuity, to keep her armies supplied with food and material up to 

the armistice. 
Guichard, The Naval Blockade 1914-1918 304 (Turner transl. 1930). 

^Scheer, op. cit. supra note 54 at 262; Campbell, My Mystery Ships (1928); 
R. W. Smith, "The Q-Ship— Cause and Effect," 79 Nau. Inst. Proc. 533 (1953). 

57 "[Q" sn ip s ] were fitted with a very carefully concealed armament, which was kept 
hidden until the submarine was within point-blank range. . . ." Jellicoe, The Grand 
Fleet 1914-1916 262 (1919). 

58 Supra note 35. Oppenheim-Lauterpacht 681-82, in attempting to distinguish 
between the British and German areas, state: 

In both cases neutral shipping suffered grievous hardship, but the British Govern- 
ment did at least indicate lanes through the mine-fields through which ships 
might pass with safety. . . . 

9 The United States note to Germany of July 21, 1915, for example, states: 
If a belligerent cannot retaliate against an enemy without injuring [sic] the lives 
of neutrals, as well as their property, humanity, as well as justice and a due 
regard for the dignity of neutral powers, should dictate that the practice be 
discontinued. 
[1915] Foreign Rel. U.S. Supp. 480, 481 (1928). The German note to the United 



68 

establish and expand a wartime trade with the United Kingdom which 
supplied the latter with the sinews of war and expect at the same time to 
be immune from German belligerent reprisals. 60 From the beginning of 
the war the United States had protested but acquiesced in the British 
long-distance blockade measures which effectively stopped its trade with 
Germany. 61 In addition, the belligerent United States by laying the great 
mine barrage between the Orkney Islands and the Norwegian coast during 
the First World War, with its impact upon neutrals, may have changed 
its earlier position. 62 It is concluded, consequently, that the actual impact 



States of Feb. 16, 1916 indicates apparent agreement. In referring to the Lusitania 
sinking, it states, "[T]he German retaliation affected neutrals which was not the 
intention, as retaliation should be confined to enemy subjects." [1916] Foreign Rel. 
U.S. Supp. 171 (1929). 

60 See notes 86, 87, infra. 

61 The United States note to Great Britain of Dec. 26, 1914, for example, protested 
against seizures and detentions of American cargoes destined to neutral European 
ports. [1914] Foreign Rel. U.S. Supp. 372 (1928). 

62 Because of its impact upon neutrals, the United States, with minimum consis- 
tency, could not and did not justify the barrage as a reprisal measure. The United 
States note to Norway of Aug. 27, 1918 described the mine barrage as follows: 

The Government of the United States is also advised that the Norwegian 
Government has been informed that the Governments of the United States and 
Great Britain are engaged in laying a barrage across that portion of the North 
Sea lying between Scotland and Norway, which when completed will effectively 
prevent the passage of enemy submarines to and from the Atlantic Ocean by 
the northern route through the North Sea provided that they are not permitted 
illegal passage through the territorial waters of Norway. 
[1918] Foreign Rel. U.S. Supp. No. 1 vol. 2, 1782, 1783 (1933). 
Prof. Hyde has written: 

Excuse for the belligerent achievement was seen in the fact that it proved to be 
a vital and necessary means of safeguarding the shipping of the Allied and 
Associated Powers from the dire consequences of illegal conduct of the enemy 
persistently exemplied in the methods employed in submarine attacks. The lay- 
ing of the barrage constituted a direct mode of combating a particular activity 
of the enemy, and called for no invocation of the theory of retaliation as a prop 
to support it in the face of neutral opposition. 
Hyde 1945. This analysis supports the wisdom of the United States in not invoking 
retaliation although Prof. Hyde concedes that the mine barrage arose from the 
"illegal conduct of the enemy." Apparently, if a belligerent does not invoke retalia- 
tion, legal justification may be made without it. 

Kenworthy & Young, Freedom of the Seas 97 (undated, circa 1928) after stating 
that the U.S. Navy laid 57,000 moored mines while the British laid 13,000, continue: 
And by rigidly restricting neutral merchant shipping to certain well-defined and 
narrow channels they made the control of the sea-routes to Germany absolute. 
From that time forward, no neutral merchant ship, even if she escaped bunker 
control, black lists, export restrictions and search in harbours could, without an 
Allied permit, hope to reach a port in a rationed neutral country. Which final 
denial of all neutral rights at sea was another contribution of America. 
Factual description appears in the U.S. Office of Naval Records and Library, The 
Northern Mine Barrage and Other Mining Activities (1920). 



69 

of the German measures upon the United States and other neutrals cannot 
deprive these measures of their status as legitimate reprisals. 

(2) Appraisal as Claim of Right 
Although upheld as a legitimate reprisal, it is necessary to appraise 
the lawfulness of the submarine operations area apart from reprisal. Some 
commentators have concluded that such areas are unlawful. For example, 
Professor Garner has stated flatly: 

As for the German war zone decree of January 1917, it was so fla- 
grantly contrary to the laws of maritime warfare that nothing can 
be said in defense of it. 63 
Professor Tucker has stated similar views : 

Even if completely effective in preventing all neutral traffic with an 
enemy, and this possibility can no longer be excluded, the methods 
that have characterized war zone operations would not warrant 
serious consideration in this respect, for the degree of effective danger 
that is to attend the attempt to break blockade must be a lawful 
danger. There is no basis for the belief that the requirement of effec- 
tiveness, demanded of lawful blockades, can be met simply by using 
any means in order to render dangerous the passage of neutral vessels 
through areas of the high seas declared to be blockaded. 64 
In making such an appraisal, it is sometimes pointed out that new 
weapons and methods of warfare (apparently meaning the submarine and 
its use) do not bring about new rules of international law. 65 It is clear 



63 1 Garner 354. 

64 Tucker 298 (footnotes omitted). 

Prof. Stone concludes that war zones on the high seas are lawful as between 

belligerents. Stone 572. He does not reach a conclusion as to their lawfulness against 

neutrals. Id. at 574. 

Prof. Lauterpacht concludes that war zones are lawful as between belligerents 

providing that the submarines used "comply with the laws of maritime warfare." 

Oppenheim-Lauterpacht 682. In his view, the use of war zones as to neutrals "can 

only be justified as a reprisal." Id. at 683-84. 
Prof. Hyde states: 

If, however, the belligerent can prove that its interference [through operational 
areas] with the neutral is inconsequential in comparison with the advantage to 
itself necessarily connected with the defense of its territory, the safety of which 
is otherwise jeopardized, the excuse is entitled to respectful consideration. 

3 Hyde 1949. 

Prof. Keith reached a tentative wartime conclusion in 1944: 

What is clear is that the change in the nature of naval weapons and methods of 
warfare may compel revision of the issue of freedom of neutral navigation by 
sea; as custom has recognized the right of blockade and of visit, search and 
capture for carriage of contraband or the performance of unneutral service, so 
it may authorize use of the conception of war zones. 

2 Keith (ed.), Wheaton's International Law 346 (7th Eng. ed. 1944). 

a °Colombos 467-68; Higgins, Studies in International Law and Relations 294 

(1928). 



70 

that this is not an acceptable method of analysis unless novelty is to be 
treated as illegality. It is also difficult to accept such an analysis in view 
of the consistent historical record of acceptance of new methods and 
instruments of war which are militarily efficient. 66 

Professor Lauterpacht, after conceding that the long-distance surface 
enforced blockade "could not be squared with the technical requirements 
of the law of blockade as generally accepted," 67 has stated its juridical 
basis : 

[MJeasures regularly and uniformly repeated in successive wars in the 
form of reprisals and aiming at the economic isolation of the opposing 
belligerent must be regarded as a development of the latent principle 
of the law of blockade, namely, that the belligerent who possesses 
the effective command of the sea is entitled to deprive his opponent 
of the use thereof for the purpose either of navigation by his own 
vessels or of conveying on neutral vessels such goods as are destined 
to or originate from him. 68 

It appears to be no more rational to determine the validity of measures 
enforced by submarines according to the criteria applicable to surface 
warships than to apply the exact criteria applicable to nineteenth-century 
blockades to the modern "long-distance" ones with literally no variations 
or considerations of "latent principle" permitted to accommodate techno- 
logical changes. 

Following the successful conclusion of the First World War by the Allied 
powers, it was argued on the stated grounds of humanity that practically 
all of the principal methods of the victors, including the long-distance 
blockade, were illegal. 69 The argument emphasized the differences between 
these methods and those employed during the previous century. It was 
not emphasized, of course, that the nineteenth-century methods themselves 
were an outgrowth and development of earlier methods. No attempt was 
made to explain how or why the development and adaptation of the law 
of naval warfare were irrevocably frozen in their nineteenth-century for- 
mulations. This type of argument, even assuming its acceptance after the 



60 This historical record is examined in Royse 1—21 and passim. 

67 Oppenheim-Lauterpacht 796. 

68 Id. at 796-97. 

69 Trimble, "Violations of Maritime Law by the Allied Powers during the World 
War," 24 A.J.I.L. 79 (1930). 

It [the long-distance blockade] violated the three fundamentals of a blockade, as 
was pointed out by the American Secretary of State, because it was not main- 
tained at close range; it stopped vessels going to neutral ports; and it left the 
German ports of the Baltic open to the Scandinavian countries, while they were 
closed to other Powers. 

Id. at 93 (footnote omitted.) These conclusions are supported by Baty, "Prize Law 

and Modern Conditions," 25 A.J.I.L. 625 (1931). 



71 

war, had no impact on the decision-making process during the war. If the 
argument had been accepted at that time, it seems most improbable that 
it would have affected decision-makers by compelling a reversion to the 
naval methods of the previous century since those earlier methods were 
no longer feasible from a technological standpoint. 70 The net effect of 
reversion to the nineteenth-century methods would have been foregoing 
the effective use of surface naval power, not to mention losing the war. 
Because of this the almost certain outcome would have been that the 
newer methods would have been continued under the onus of illegality. 
The consequences would have been the enhancement of the attitude that 
international law is inadequate to regulate modern war and an abandon- 
ment of all restraints upon naval warfare. Such a decision, or any func- 
tionally equivalent one to conduct war outside of law, would hardly 
promote humanitarian objectives. Considering these factors, Professor Lau- 
terpacht's appraisal of the long-distance blockade is preferable. In addition, 
a method of legal appraisal which proclaims illegality after the war but 
which has no impact on decision-makers during the war leaves something 
to be desired. 71 This difficulty persists, of course, whether such an in- 
adequate appraisal is made concerning surface or submarine methods of 
warfare. 

If Germany had claimed to establish the submarine area as a matter 
of legal right it could have advanced a number of specific arguments. 
British economic warfare against Germany, enforced by surface naval 
power, was an adaptation of the traditional principles of the law of war 
to the changed circumstances of the First World War. In particular, the 
long-distance blockade was a development of the traditional principles 
and could not be regarded as lawful unless technological change were 
accepted as fact and unless consequent doctrinal adaptation and extension 
were accepted as an integral part of the law. 72 

Employing precisely the same criteria, Germany could claim that its 
submarine warfare was also an adaptation and extension of the traditional 
principles. This claim, in substance, is analogous to Professor Lauterpacht's 
appraisal of the long-distance surface blockade quoted above. The sum- 
mary way to reject it is to argue that the reasoning is inapplicable to 
submarines. Mr. Colombos has stated : , 

[T]he attempt to change existing principles to the advantage of the 



70 See the text accompanying notes 23-27 supra. 

71 It is obvious that the humanitarian objectives of the laws of war must be im- 
plemented during the actual war or hostilities. 

72 The lawfulness of the long-range blockade is upheld by Colombos 693-94; 
Oppenheim-Lauterpacht 796-97; Garner, "Violations of Maritime Law by the 
Allied Powers During the World War," 25 A.J.I.L. 26, 42-48 (1931) (emphasizing 
geographical factors). 



72 

party which lacks command of the surface of the sea is an attempt 
to avoid the consequences of naval weakness. 73 
In view of the military efficiency manifested by submarines in two World 
Wars, one may doubt the accuracy of the label of "naval weakness." The 
quoted writer has been equally explicit in summarizing modern economic 
warfare enforced by surface vessels: "The economic weapon was thus 
effectively used to throttle the enemy's commerce." 74 In the same context 
of surface naval enforcement he states that, "The annihilation of the 
enemy's commerce is one of the great aims of naval warfare." 75 The 
contrast in such an appraisal of surface and submarine naval warfare 
could lead an observer to suspect a bias against the latter without regard 
to the relative destruction of values actually involved in its use. 

It may be that operational areas, at least for individual submarines, 
could be juridically upheld even by the same standards applicable to surface 
warships. Dr. Royse, after examining the failure of the Hague Conventions 
to restrict the efficient use of surface naval gunfire, states : 

The warship, in a legal sense, thus became a floating battlefield 
carrying with it the same immunity from restrictions as attended land 
operations in the actual combat zone. The exclusive military sphere 
characterizing land operations, in which the principle of utility or 
effectiveness dominated, became similarly operative in any zone oc- 
cupied by a belligerent naval vessel. This sphere may be said to have 
followed the warship through all waters in all its war operations. 
Whatever restrictions obtained were concerned, as in land operations, 
with wanton destruction and terrorization. Effective artillery opera- 
tions were left unrestricted. 76 
It is not necessary, of course, to rely on this interesting analysis alone 
because of the other considerations which indicate the juridical validity of 
submarine operational areas. 

It is sometimes stated that the vulnerability and other characteristics of 
submarines do not reduce the obligation to comply with the traditional 
doctrinal requirements. 77 It must be recalled that even the British, with 
predominant surface naval power, were not able to comply with the tradi- 
tional procedures of visit and search at sea. 78 It could be persuasively 
maintained, in consequence, that these technologically obsolete procedures 
were no more applicable to submarine warships. Before resorting to "un- 
restricted" submarine warfare in 1917, the argument would stress, Germany 



73 Colombos 470. 

74 Id. at 707. 

75 Id. at 509-10. 

76 Royse 164 (footnote omitted). 

77 Colombos 469-70; t Garner 377-80. 

78 The technique of diversion of merchant ships was adopted because of the im- 
practicability of visit and search at sea. See the text accompanying note 22 supra. 



73 

actually attempted visit and search by submarines and this was proven 
unworkable in the light of the new technology in general and the methods 
of warfare employed by British merchant ships in particular. 79 

The relative destructiveness of particular methods of stopping commerce 
with the enemy belligerent should be more important criteria to determine 
lawfulness than compliance with obsolete procedures. 80 The intermediate 
sanctioning devices employed for the long-distance blockade consisted of 
the navicert system, diversion of ships to ports for adequate searches, com- 
pliance with bunker controls, and similar methods. 81 The ultimate sanction 
applied to merchant vessels which failed to acquiesce in the intermediate 
sanctions and persisted in attempting to run the blockade was gunfire from 
surface naval vessels. 82 It is well established even under the traditional law 
that a merchant vessel which refuses to stop when ordered to do so may be 
attacked by a belligerent warship. 83 The refusal by a merchant ship to 
comply with the warning involved in a proclaimed submarine operational 
area, in view of the changes in naval technology, may be said to be tanta- 
mount to persistent refusal to stop when ordered to do so by a surface 
warship. In this context, there is no reason why torpedo attack without 
further warning than that involved in a specified and notified operational 
area should be regarded as more destructive of neutral human and material 
values than gunfire from surface warships. 

The German submarine operational area is also reasonable in other 
respects. The notice concerning the area issued to neutral states enchanced 
the military effectiveness of the area in interdicting commerical intercourse 
between the United Kingdom and the neutrals. 84 At the same time the 
notice was designated to minimize destruction of neutral values by encour- 
aging or coercing the neutrals to keep their merchant ships out of the 
operational area. The central importance of the economic objective in 



79 See the text accompanying notes 51, 56, and 57 supra. 

80 See McDougal & Feliciano 494. 

81 These sanctions were highly effective. 1 & 2 Medlicott passim. 

a This was the ultimate sanction even though the traditional texts only list capture 
as a sanction for breach of blockade. See, e.g., Oppenheim-Lauterpacht 788-89. The 
same text reveals no hesitancy in allowing an attack on a merchant ship if the attack 
is in response to a refusal to submit to visit. See infra note 83. 

"Enemy merchantmen may be attacked only if they refuse to submit to visit 
after having been duly signalled to do so." Oppenheim-Lauterpacht 466-67 (footnotes 
omitted) . 

84 Compare the comprehensive character of commerce interdiction sanctioned by 
surface naval power: 

It is now not only a case of blockade, it is a case of shutting down German 

commerce the world over, so far as we are able to do it. 
De Montmorency, "The Black List," 3 Grotius Trans. 23, 34 (1917). 



74 

general war to both surface and submarine naval powers also supports 
the conclusion of the reasonableness of the submarine area. 85 

Appraisal of the German submarine operations area as a claim of right 
should also be made in terms of its impact upon neutrals. Although termed 
"neutrals," it must be recalled that some neutrals, and particularly the 
United States, were engaged in the large and profitable trade of supplying 
war material to Germany's principal enemies but not to Germany. 86 In 
view of the general character of the war situation and of the crucial im- 
portance of economic warfare, the belligerent interest in maintenance of 
the operational area must be deemed to outweigh by far the neutral interest 
in trade with one group of belligerents. The neutral interest thus overcome, 
it should be emphasized, is not the mere maintenance of the former peace- 
time trade but rather the development of a greatly expanded wartime 
trade. 87 

For these further reasons, the German submarine operational area of the 
First World War must be upheld as a lawful claim of right. In summary, 
the outcome of the decision-making process in the First World War was 
the development of expectations of uniformity and Tightness of the kind 
usually described as customary law. This customary law upholds as reason- 
able and lawful both the long-distance surface blockade and the submarine 
operational area. It should be added that the interwar period produced 
no international agreement specifically designed to outlaw submarine 
operational areas. 



85 "It would appear that recourse to this practice [submarine operational areas], 
because of fundamental belligerent rights, cannot be opposed." Mori, The Submarine 
in War: A Study of Relevant Rules and Problems 172 (1931). 

86 From June 30, 1914, to June 30, 1917, the United States shipped $506,674,000 
worth of gunpowder and $665,237,000 in other explosives. 

Buehrig 89 (footnotes omitted). The quoted figures do not include firearms, cart- 
ridges, and various metals. Prof. Buehrig states that as to all of these (except copper — 
277% increase) : 

[T]he increase over the three-year period 1911-13 was so extreme as to indicate 
that before the war the countries in question imported these commodities from 
the United States in only negligible quantities. 
Ibid. 

87 If the neutrals had in reality been content to continue their normal peace- 
time trade, many of the conflicts with the belligerents would not have taken 
place and the law of neutrality might have been shaped quite differently. 
Jessup, 4 Neutrality: Its History, Economics and Law (vol. 4 is additionally entitled 
Today and Tomorrow) 23 (1936). 

They have sought to grasp the momentary inflated profits of the war boom, 
unwilling to hold themselves down to a normal economic life even in so far as 
normality is possible under such circumstances. Their compaints, their quarrels 
with the belligerents and their frequently resulting involvement in the war, have 
resulted from their insistence upon entering the economic conflict. 
Id. at 34. 



75 

b. THE SECOND WORLD WAR 

On November 24, 1939 the German Government made its first 
submarine area claim of the new war in a note to several of the maritime 
neutral states. 88 The note was not sent to the United States which barred 
its citizens, ships, and aircraft from a combat zone which included a large 
area off the European west coast. 89 The note pointed out the existence 
of the United States combat zone as well as the alleged use of enemy 
merchant ships for aggressive purposes and stated that these matters caused 
the German Government: 

to warn anew and more strongly that in view of the fact that the 
actions are carried on with all the technical means of modern war- 
fare, and in view of the fact that these actions are increasing in the 
waters around the British Isles and near the French coast, these waters 
can no longer be considered safe for neutral shipping. 90 
Admiral Donitz's counsel, Flottenrichter Kranzbuhler, described the op- 
erational area and its effect to the International Military Tribunal as 
follows : 

The note then recommends as shipping lanes between neutral 
powers certain sea routes which are not endangered by German naval 
warfare and, furthermore, recommends legislative measures according 
to the example set by the United States. In concluding, the Reich 
Government rejects responsibility for any consequences which might 
follow if warning and recommendation should not be complied with. 
This note constituted the announcement of an operational area equi- 
valent in size to the U.S.A. combat zone, with the specified limitation 
that only in those sea zones which were actually endangered by actions 
against the enemy consideration could no longer be given to neutral 
shipping. 91 

On August 17, 1940, following its victory over France and the low 
countries, Germany made another operational area claim in a note to 
neutrals not including the United States. 92 It was described by Kranz- 
buhler as "a declaration in which the entire area of the U.S.A. combat 
zone around England without any limitation was designated as an opera- 
tional area." 93 It provided in part: 

The German Government assumes no responsibility for damage 



88 18 I.M.T. 327. 

89 Authority for the combat zone was provided in the Neutrality Act of 1939, 54 
Stat. 4, 7 (1939). A chart depicting the United States zone is in 1 Medlicott 334. 
The combat zone was a municipal measure applicable only to United States citizens, 
vessels and aircraft. 

90 18 I.M.T. 328. 

91 Ibid. 

92 Id. at 328-29. 

93 Ibid. 



76 

to ships or injury to persons which may befall them in this area. 94 
As the result of the developments which the war has taken during 
the last weeks England has been brought into the center of the war 
activities at sea and in the air. In the sea area surrounding the British 
Isles constant war action is consequently from now on to be expected 
which makes it impossible for merchant ships to pass through this 
sea area without running serious risks. The entire sea area around the 
British Isles has therefore become a combat zone. Every vessel which 
passes through this area is exposed to destruction not only by mines 
but also by other weapons. The German Government therefore most 
urgently renews its warning to neutral shipping against passing 
through the danger zone .... 

Apparently this later German claim did not provide for safe shipping 
routes between neutral states as the earlier one did. 

Appraisal 

It should be noted that the earlier claim of November 24, 1939 
does not, in substance, go beyond that in the German "unrestricted" 
submarine zone of February 1, 191 7. 95 The factual conditions of the 
naval war situation during the Second World War were basically similar 
to those of the First World War and included another Allied long- 
distance blockade. The importance of the economic objective in general 
war was not reduced. 96 The same legal analysis employed in appraisal of 
the German claim of February 1, 1917 also justifies the conclusion of the 
lawfulness of the present claim. The International Military Tribunal at 
Nuremberg, however, reached a decision which is in significant part in- 
consistent with this conclusion. 97 

Assuming that the claim of August 17, 1940 did not provide for safe 
routes between neutrals for genuine interneutral trade and that it was 
practicable to do this, it is concluded that the claim is not justified in 
law in this respect. The issue as to whether or not it is consistent with 
law to prevent neutral trade with the opposing belligerent by the use of a 
submarine operational area has been considered in connection with the 



94 6 Hackworth 485-86 ; it is also quoted less fully and with slight variations in 
wording in 18 I.M.T. 329. 

"War zone" declarations enforced by either surface or submarine naval power are 
collected in U.S. Naval War College, International Law Documents 1943 51-67 
(1945) and U.S. Naval War College, International Law Documents 1940 44-52 
(1942). What is apparently a German propaganda version of the claim quoted in 
the text appears in id. at 46-50. 

95 See the text at note 46 supra. 

96 See generally 1 & 2 Medlicott. 

97 I.M.T. 311-13. 



77 

claim of February 1, 191 7. 98 It will be considered further with the other 
issues raised before the International Military Tribunal." 

Admiral Donitz was indicted before the International Military Tribunal 
for, inter alia, "waging unrestricted submarine warfare contrary to the 
Naval Protocol of 1936." 10 ° In support of this claim, the prosecution con- 
tended : 

Nor need we take time to examine the astonishing proposition that 
the sinking of neutral shipping was legalized by the process of making 
a paper order excluding such neutral ships not from some definite 
war zone over which Germany exercised control but from vast areas 
of the seas. For there is one matter at least about which nobody 
questions or puts questions to the law. 101 

This statement reflects adequately the prosecution's view of operational 
areas. In its opinion such areas could only be lawfully claimed by a 
belligerent exercising effective "control." Since Germany did not meet this 
requirement, in spite of highly effective and almost decisive submarine 
enforcement of the area, one is led to conclude that only a surface naval 
power could exercise "control" in this restricted sense. In substance the 
prosecution submitted that the German claim, because based upon sub- 
marine control and enforcement, was only a "paper order" 102 and the 
claim of its legality as to neutrals an "astonishing proposition." 

It was argued in behalf of Admiral Donitz that consideration was ex- 
tended to neutrals in the conduct of submarine warfare as long as it was 
possible. 103 Article 74 of the German Prize Law of 1939 incorporated the 
substance of the Protocol of 1936. 104 Flottenrichter Kranzbuhler empha- 
sized that this Ordinance was carried out by German submarines for the 
first few weeks of the war until the enemy made it impossible. In his 
words : 

Why was this practice not kept up? Because the conduct of the enemy 



08 See the text accompanying notes 86, 87 supra. 

99 See the text accompanying notes 121-27 infra. 

100 1 I.M.T. 311. 

The "Naval [or Submarine] Protocol of 1936" is the same as the Proces-Verbal of 
1936 and both, in substance, are the same as art. 22 of the London Naval Treaty of 
1930. See note 114 infra for full citation. 

101 Stated by Sir Hartley Shawcross. 19 I.M.T. 469. 

13 The "paper order" or "paper blockade" terminology was used historically to 
refer to a traditional blockade supported by insufficient naval power to meet the 
requirement of effectiveness. See Hall, The Law of Naval Warfare 198-99 (2nd rev. 
ed. 1921). 

103 18 I.M.T. 314, 326-27. 

10i The German Prize Law Code of Aug. 28, 1939 art. 74 is quoted in 7 Hackworth 
248. 



78 

made such a procedure militarily impossible, and at the same time 

created the legal prerequisites for its modification. 105 

The claim of reprisal could, of course, be invoked again as it was in 
the earlier general war. Because of British and American departures from 
the strict interpretation of the traditional law 106 the German submarine 
operational area may again be justified as a legitimate reprisal. It could 
be argued in favor of such an approach that reprisals have actually been 
used as a legislative device to bring the law up to date with modern 
technological realities. 107 Because of the facility of successfully invoking 
reprisals, however, a more fundamental appraisal should be made. In 
addition, it is simply not credible that the militarily efficient use of modern 
naval power, whether surface, submarine, or air, is entirely dependent 
upon the commission of illegalities by the opposing belligerent. 108 

At the time of the proclamation of the German submarine operational 
area of August 17, 1940 the following facts confronted the German naval 
command according to Kranzbuhler: 

(1) A legal trade between the neutrals and the British Isles no 
longer existed. On the grounds of the German answers to the British 
stipulations concerning contraband goods and the British export 
blockade, any trade to and from England was contraband trade and 
therefore illegal from the point of view of international law. 

(2) The neutrals in practice submitted to all British measures, even 
when these measures were contrary to their own interests and their 
own conception of legality. 

(3) Thus, the neutrals directly supported British warfare, for by 
submitting to the British control system in their own country they 
permitted the British Navy to economize considerably on fighting 
forces which, according to the hitherto existing international law, 
should have exercised trade control at sea and which were now avail- 
able for other war tasks. 109 



105 18 I.M.T. 314. 

106 The British Admiralty assumed effective control over British merchant shipping 
on Aug. 26, 1939 just before the start of World War II. Roskill 35. By March 1941, 
the Admiralty had overcome the initial shortage and fitted 3,434 merchant ships with 
antisubmarine guns. Id. at 47. 

107 See McDougal & Feliciano 675. 

108 See the remarkable account of the background of the British Reprisals Order in 
Council of Nov. 27, 1939 in 1 Medlicott 112-14. One may receive the impression 
that the British urgent need for effective economic warfare was so great that if 
reprisal were not available another ground would have been invoked. In addition, 
the careful long-range planning of economic warfare between the World Wars in- 
dicated unequivocally that it was to be considerably more than an occasional reprisal 
response to enemy illegality. 1 Medlicott 12-24. 

109 18 I.M.T. 335. 



79 

Because of these facts, in Kranzbuhler's view, there was no reason for 
the German Government to give preference to the neutrals over German 
military needs "in determining its operational area with a view to pre- 
venting illegal traffic from reaching England." 110 He also pointed out 
that the neutral ships traveling to England, in spite of German warnings, 
underwent a great risk for the purpose of earning a high profit. 111 

The judgment of the Tribunal, after stating that it "is not prepared to 
hold Donitz guilty for his conduct of submarine warfare against British 
armed merchant ships," 112 continued : 

However, the proclamation of operational zones and the sinking of 
neutral merchant vessels which enter those zones presents a different 
question. This practice was employed in the war of 1914-1918 by 
Germany and adopted in retaliation by Great Britain. The Washing- 
ton Conference of 1922, the London Naval Agreement of 1930, and 
the Protocol of 1936 were entered into with full knowledge that such 
zones had been employed in the First World War. Yet the Protocol 
made no exception for operational zones. The order of Donitz to sink 
neutral ships without warning when found within these zones was, 
therefore, in the opinion of the Tribunal, a violation of the Protocol. 113 
The "Protocol of 1936" is, in substance, the same as article 22 of the 
London Naval Treaty of 1930 and provides: 

(1) In their action with regard to merchant ships, submarines must 
conform to the rules of international law to which surface vessels are 
subject. 

(2) In particular, except in the case of persistent refusal to stop on 
being duly summoned, or of active resistance to visit or search, a 
warship, whether surface vessel or submarine, may not sink or render 
incapable of navigation a merchant vessel without having first placed 
passengers, crew and ship's papers in a place of safety. For this pur- 
pose the ship's boats are not regarded as a place of safety unless the 
safety of the passengers and crew is assured, in the existing sea and 
weather conditions, by the proximity of land, or the presence of 
another vessel which is in a position to take them on board. 114 



110 Ibid. 

111 Ibid. 

112 1 I.M.T. 312. 

113 Id. at 312-13. 

114 



The "Protocol of 1936" or the "Proces- Verbal Relating to the Rules of Sub- 
marine Warfare Set Forth in Part IV of the Treaty of London of April 22, 1930" 
contains the identical rules set forth in the London Naval Treaty Part IV (art. 22) 
and quoted in the text. Art. 23 of the London Naval Treaty provided, 'Tart IV 
shall remain in force without limit of time" (the rest of the Treaty expired on Dec. 
31, 1936). In the Proces-Verbal the parties to the London Naval Treaty invited 



80 

The second paragraph of the Protocol states two exceptions to the rules: 
"persistent refusal to stop on being duly summoned" and "active resistance 
to visit or search." The Tribunal's conclusion that "the Protocol made no 
exception for operational zones" necessarily involves the interpretation 
that the stated exceptions precluded the existence of others, and that the 
stated ones did not cover the situation of a submarine operational area 
being the functional equivalent of the stated exceptions. The Tribunal's 
conclusion appears to be an example of mechanical interpretation or 
literalism. 115 There is no indication that the Tribunal gave careful con- 
sideration to the alternative interpretation that the Protocol was inappli- 
cable in operational areas since there was no international agreement on 
this subject. Such an interpretation was advanced by Kranzbuhler 116 and 
it is at the very least as plausible as the interpretation selected by the 
Tribunal. It is more plausible if the operational area is evaluated as too 
important to be dealt with by implication. 

The ambiguities of the Protocol suggest that its rational interpretation, 
that is ascertaining the probable intended meaning of the parties based 
on all relevant evidence, 117 is more difficult than the Tribunal seemed to 
appreciate. Among the ambiguities are the term "merchant ships" in the 
first paragraph and the term "a merchant vessel" in the second para- 
graph. 118 The Tribunal interpreted these terms as excluding "British 
armed merchant ships." 119 It recognized that the British Admiralty con- 
voyed merchant ships and directed them to send position reports upon 
sighting submarines, "thus integrating merchant vessels into the warning 



other states to agree to Part IV (art. 22). Forty-nine states adhere to it including 
France, Germany, Italy, Japan, Soviet Union, United Kingdom, and United States. 
Dept of State, Treaties in Force 292 (1966). 

The London Naval Treaty Part IV (art. 22) is in 46 Stat. 2858, 2881-82 (1931) ; 
2 Hackworth 691 ; 6 Hackworth 466. 

The Proces-Verbal or Protocol of 1936 is in 31 A.J.I.L. Supp. Official Docs. 137-39 
(1937); 7 Hackworth 248. 

115 The process of interpretation, rightly conceived, cannot be regarded as a 
mere mechanical one of drawing inevitable meanings from the words in a text, 
or of searching for and discovering some preexisting specific intention of the 
parties with respect to every situation arising under a treaty. 

Harvard Research, Treaties 9*46. 

116 18 I.M.T. 330. 

117 The Harvard Research, Treaties 937 (art. 19(a)) employs interpretation in 
the light of the general purpose to be served by the treaty. The Harvard Research 
is quoted in relevant part in the text of Ch. IV, section B. The same approach to 
interpretation appears in American Law Institute, Restatement of the Foreign Rela- 
tions Law of the United States section 147 (1965). 

ns Compare Prof. Morison who describes the Treaty as "perfectly explicit" in 1 
History of the United States Naval Operations in World War II: The Battle of the 
Atlantic 8 (1947). 

119 1 I.M.T. 312. 



81 

network of naval intelligence." 120 The references to merchant ships in 
the Protocol could, with consistency, have been interpreted as not appli- 
cable to any vessel including neutrals so integrated into the British warning 
network. 

The Tribunal, however, found Admiral Donitz guilty of a violation of 
the Protocol in the sinking of "neutral merchant vessels" which entered 
the submarine operational areas. 121 The term "neutral merchant vessels" 
is more precise than the language concerning merchant vessels in the Pro- 
tocol but it is not self-defining. The broad term "neutral merchant vesssels" 
comprises at least two distinct categories. The first covers those which are 
engaged in genuine interneutral trade and do not contribute to the eco- 
nomic war resources of the belligerents. The second consists of those neutral 
vessels which, through acquiescence or coercion, participate in the navicert 
system and the other modalities of the surface long-distance blockade. 122 
Although the ambiguous term "neutral" covers both categories, it is 
obvious that the functional economic differences between them are much 
greater than any similarities. The category of neutral vessels possessing 
British navicerts, 123 ship navicerts, 124 or ship warrants, 125 actively coopera- 
ted in British economic warfare measures. The real issue before the Tri- 
bunal, in view of the fundamental importance of naval economic warfare 
in general war, was whether this second category of "neutrals" were so 
functionally a part of British and Allied economic warfare that they could 
lawfully be accorded the same treatment as that accorded to belligerent 
merchant ships. The Tribunal's invocation of the ambiguity "neutral 
merchant vessels" enabled it to avoid making the difficult analysis of this 
fundamental issue. 

Professor Medlicott has now provided the kind of factual material which 
is relevant to resolving the issue : 



120 Ibid. 

121 1 I.M.T. 313. 

123 Under questioning by the chief British prosecutor, Admiral Donitz used a land 
warfare analogy in connection with such neutral vessels: "For instance, no considera- 
tion would be shown on land either to a neutral truck convoy bringing ammunition 
or supplies to the enemy." 13 I.M.T. 365. 

128 A navicert was a "commercial passport" issued by the British Government "in 
respect of any consignment which did not appear liable to seizure as contraband." 
1 Medlicott 94. See generally 7 Hackworth 212-17; Ritchie, The "Navicert" System 
During the World War (1938). 

A ship navicert was issued when the entire cargo was covered by navicerts and 
was "intended to minimize further the formalities of visit and search." 1 Medlicott 
96-97. 

The ship warrant was a document issued to each neutral ship whose owner 

had given satisfactory undertakings to do what the British Government required. 

The shipowner undertook to comply with economic-warfare regulations. . . . 
1 Medlicott 442-43. 



82 

It must always be remembered that the ship-warrant system was of 
importance not only for economic-warfare purposes, but also for the 
securing of tonnage and for the furthering of other sides of Allied 
shipping policy. 126 

In view of the functional naval economic warfare equivalence of these 
"neutral merchant vessels" with British merchant vessels, it is reasonable 
and lawful to accord them the same treatment in submarine operational 
areas which the Tribunal approved in the situation of British merchant 
ships. This resolution of the issue is formulated in somewhat narrower 
terms than a conclusion of Professor Lauterpacht concerning the same 
general subject matter: 

[T]he experience of the two World Wars has shown that that substan- 
tial aspect of the traditional law of neutrality which centres around 
the neutral rights of commerce and intercourse generally has become 
obsolete to a large extent. In modern war in which the military and 
economic aspects of the national effort are inextricably interwoven, 
the concessions which the belligerent is in the position to make to 
neutral commerce are very narrowly circumscribed. 127 
There is at least one other factor which should have led the Tribunal 
to accept Kranzbuhler's interpretation of the Protocol. Deference to well- 
known principles of criminal law due process would have required the 
Tribunal to resolve the ambiguities of the Protocol in Admiral Donitz' 
favor since it was applied to him as a criminal statute. 128 

Since the Tribunal provided no reasoned basis, other than its improbable 
interpretation of the Protocol, for its conclusion that the sinking of "neu- 
tral" merchant ships in the submarine enforced operational area was illegal, 
a further inquiry should be made for possible reasons. In looking outside 
the judgment itself, there is a significant colloquy between Lord Justice 
Lawrence, the President, and Admiral Donitz' counsel. 

THE PRESIDENT: One minute. Dr. Kranzbuhler, does not the right 



128 1 Medlicott 443. 

It is not surprising that the view of the German Supreme Prize Tribunal was that: 
[T]he introduction of ships' warrants is a measure of economic warfare, with 
the express purpose of getting to the greatest extent under British control those 
ships which were not yet in British hands. 
The Ole Wegger, [1943-45] Annual Digest 532, 535 (No. 193). 

127 Oppenheim-Lauterpacht 642. The passage quoted continues by stating that it 
is difficult "to visualize the nature of the principle" involved. 

128 [A criminal] statute which either forbids or requires the doing of an act in 
terms so vague that men of common intelligence must necessarily guess at its 
meaning and differ as to its application, violates the first essential of due process 
of law. 

Gonnally v. General Construction Co., 269 U.S. 385, 391 (1926). 



83 

to declare a certain zone as an operational zone depend upon the power 
to enforce it? 

FLOTTENRICHTER KRANZBUHLER: I do not quite follow the 
point of your question. 

THE PRESIDENT: Well, your contention is, apparently, that any state 
at war has a right to declare such an operational zone as it thinks right 
and in accordance with its interest, and what I was asking you was whether 
the right to declare an operational zone, if there is such a right, does not 
depend upon the ability or power of the state declaring the zone to enforce 
that zone, to prevent any ships coming into it without being either captured 
or shot. 

FLOTTENRICHTER KRANZBUHLER: I do not believe, Mr. Presi- 
dent, that there exists agreement of expert opinion regarding that question. 
In contrast to the blockade zone in a classical sense where full effect is 
necessary, the operational zone only provides for practical endangering 
through continuous combat actions. This practical threat was present in 
the German operational zone in my opinion, and I refer in that connection 
to the proclamation of President Roosevelt regarding the U.S.A. combat 
zone, where the entering of that zone was prohibited, because as a result 
of combat actions shipping must of necessity be continuously endan- 
gered. 129 

******* 

THE PRESIDENT: Do you mean, then, that you are basing the power 
of the state to declare a certain zone as an operational zone not upon the 
power of the state to enforce its orders in that zone, but upon the pos- 
sibility of danger in that zone? 

FLOTTENRICHTER KRANZBUHLER: Yes 

THE PRESIDENT: You say it depends upon the possibility of danger 
in the zone? 

FLOTTENRICHTER KRANZBUHLER: I would not say the possibility 
of danger, Mr. President, but the probability of danger, and the impossi- 
bility for the belligerent to protect neutral shipping against this danger. 130 
The President's view, as strongly suggested in his questions, is that the 
power to legally establish an operational area is based upon the ability 
"to enforce that zone." The questions directed to Kranzbuhler indicate 
that the questioner did not believe that Germany had such power of 
enforcement, or "control," as the prosecution put it. The questions, there- 
fore, appear to indicate full judicial agreement with the prosecution claim 



129 18 I.M.T. 332-33. 

130 Id. at 333. 



84 

that the legal requirements of enforcement or control could not be met 
by "a paper order" and submarine enforcement. 131 Unfortunately, Kranz- 
buhler did not respond to the express statements in the questions and 
demonstrate their juridical inadequacy. Whether the quoted questions 
actually reveal the reasoning which was persuasive to the Tribunal or not, 
it is clear that the decision of the Tribunal is at least consistent with this 
reasoning. 

c. CLAIMS TO ESTABLISH RESCUE ZONES OF 
IMMUNITY 

Two of the Geneva Conventions of 1949 provide for the ad hoc 
creation of hospital zones and localities of immunity in land warfare. 132 
These humanitarian provisions are designed to protect the wounded and 
the sick as well as civilian persons from some of the effects of war. There 
appears to be no sufficient reason why analogous zones for rescue purposes 
should not be established on the high seas in time of war. 

As a matter of fact, a German U-boat captain and Admiral Donitz 
did attempt to establish such a rescue zone during the Second World War. 
Captain Roskill, the historian of the British Navy, has described the facts 
as follows: 

In September, 1942, a group of [four] U-boats and a 'milch cow' 
(as the Germans called their supply submarines) arrived south of the 
equator, and there on the 12th U.156 sank the homeward-bound 
troopship Laconia, which had 1,800 Italian prisoners on board. On 
learning from survivors what he had done Hartenstein, the U-boat's 
captain, sent a series of messages en clair calling for help in the rescue 
work and promising immunity to ships sent to the scene, provided 
that he himself was not attacked. 133 

Captain Roskill has also stated that: "Donitz ordered other [U-]boats 
to go to the rescue, and the Vichy Government was asked to send help 
from Dakar." 134 The U-boats initiated and took the principal role in the 
rescue operations including towing lifeboats toward the African coast, and 
Vichy French warships joined in the rescue work. During the four days 
involved in the rescue work the submarines were, of course, diverted from 
their normal wartime operations. The British Navy ordered two ships to 
proceed to the scene and assist. RoskilFs account continues: 

All went well until the next afternoon [Sept. 16] when an American 
Army aircraft from the newly established base on Ascension Island 



131 See the text at supra note 101. 

132 Convention Concerning Wounded and Sick in the Field, art. 23 ; Convention 
Concerning Civilian Persons, art. 14. 

133 Roskill 224. 

1U 2 Roskill, The War at Sea 1939-1945: The Period of Balance 210-11 (1956). 



85 

arrived, flew around the surfaced U-boats for about an hour, and 
then attacked U.156 with bombs. It is as impossible to justify that 
act as it is difficult to explain why it was committed. 135 
The Historical Division of the U.S. Air Force has stated concerning 
this incident: 

A summary of operations from Ascension Island states that on the 
morning of 16 September 1942 a B-24 of the US Army Air Forces 
sighted a submarine at 5 degrees South, 11 degrees 40 minutes West. 
The sub, which was towing two life boats and was in the process of 
picking up two more, was displaying a white flag with a red cross. 
The sub did not show a national flag when challenged by the B-24. 
The plane left the scene and contacted Ascension. Since no friendly 
subs were known to be in the area, the plane was instructed to 
attack. 136 

In making an appraisal in 1960, Captain Roskill has written: 
To-day two things seem clear. The first is that throughout the days 
following the torpedoing of the troopship, Hartenstein and the other 
U-boat captains involved behaved with marked humanity towards 
the survivors, doing their utmost to rescue friends and foes alike; and 
the second is that, on the Allied side, whoever sent the order to the 
aircraft to bomb the U-boat committed a serious blunder. 137 
It should be stated that the order to bomb the submarine was worse 
than "a serious blunder." In addition, the aircraft commander who car- 
ried out the order must have known the actual facts after flying "around 
the surfaced U-boats for about an hour," and been aware that the order 
was not based on an accurate understanding of the situation. 

Following the bombing incident, Admiral Donitz issued orders to the 
submarines to stop the rescue attempt. 138 Had it not been for the bomb- 
ing, the attempt to establish the rescue zone of immunity in an area large 
enough to effectuate the rescue probably would have been successful. As 
it was, many of the personnel of the Laconia, including Italian prisoners 
of war and British passengers, were rescued because of the actions of 



135 Roskill 224-25. 

138 Excerpt of letter from Historical Division, U.S.A.F. to Mr. David D. Lewis (Apr. 
12, 1960). The excerpted letter appears as an enclosure to letter from Director, Re- 
search Studies Institute, Air University, Maxwell Air Force Base, Ala., to President, 
Naval War College, Newport R. I. (Apr. 19, 1961). The excerpted letter is quoted 
more extensively in Lewis, The Fight for the Sea: The Past, Present, and Future 
of Submarine Warfare in the Atlantic (1961) at 179 and at 180, first full sentence 
(without indication it is a continuation of quotation from prior page). 

137 Roskill 225. 

™\Z I.M.T. 285-87. On Sept. 17, 1942 Donitz issued the "Laconia Order." 18 
I.M.T. 348. It is appraised substantively in Ch. IV, section B. 



86 

Hartenstein and Donitz. 139 There can be no doubt but that the rescue 
attempt was consistent with the highest humanitarian traditions even 
though there is no indication that the International Military Tribunal 
gave credit for it. Since a preeminent objective of the laws of war is to 
prevent unnecessary loss of life, rescue zones of immunity on the high seas 
should be honored and implemented by belligerent and neutral states alike 
in future naval wars. 

2. United Kingdom Claims 

During the Second World War the United Kingdom usually enjoyed 
surface naval predominance over Germany. Apparently Germany enjoyed 
such surface naval predominance in the Skagerrak and Kattegat at the 
time of the invasion of Norway. Beginning on April 9, 1940 the British 
Government removed the restrictions on its submarines concerning attacks 
upon merchant ships east of eight degrees East. 140 On May 8, 1940 the 
British First Lord of the Admiralty announced in the House of Commons: 
Therefore we limited our operations in the Skagerrak to the sub- 
marines. In order to make this work as effective as possible, the usual 
restrictions which v/e have imposed on the actions of our submarines 
were relaxed. As I told the House, all German ships by day and all 
ships by night were to be sunk as opportunity served. 1 



141 



Appraisal 

It was highly unlikely that any neutral ships were sailing in the Skager- 
rak (Jutland) and Kattegat area at the time the British relaxed their 
"usual restrictions" on submarine operations. Consequently, the issues 
concerning neutral merchant vessels in the submarine area do not appear 
to exist as a practical matter. Nevertheless, the phrase "all German ships 
by day" indicates that the British undertook to discriminate between 
German ships and others, presumably neutrals, in the area in the daylight 
hours. The category "all German ships" presents no legal issues as to 
German warships, including naval auxiliaries, since they may be sunk 
lawfully without warning whether in or out of an operational area. It is 
most probable that the German merchant ships in the category were 
either armed or otherwise participating in the German naval war effort. 
The sinking of such ships without warning would be upheld as lawful 
even according to the decision of the International Military Tribunal in 
the case of Admiral Donitz. 142 



139 In addition to the Roskill books cited supra see Peillard, The Laconia Affair 
(Coburn transl. 1963). 

140 Gilbert, "British Submarine Operations in World War II," 89 Nav. Inst. Proc. 
No. 3, p. 73, 74 (1963) ; Maclntyre, Narvik 65 (Amer. ed. 1960). 

141 13 I.M.T. 453-54. 

142 1 I.M.T. 312. 



87 

In spite of the high improbability of neutral ships in the British sub- 
marine operational area, the phrase "all ships by night" includes the claim 
to sink neutral ships in the Skagerrak and Kattegat during the hours of 
darkness. Based on its decision in the case of Admiral Donitz, the Tribunal 
would deem this claim directed at neutrals to be unlawful. 143 It should be 
appraised as lawful where the neutral ships were participating in German 
economic warfare. The reasons for this conclusion have been stated in the 
criticism of the decision concerning neutral ships participating in the oppos- 
ing belligerent's economic warfare in the case of Admiral Donitz. 144 In 
summary, the same legal appraisal which upheld the lawfulness of the 
German submarine operational areas in both World Wars provides an 
ample juridical basis for upholding the British claim in the Skagerrak 
and Kattegat. 

3. United States Claims 

On December 7, 1941 the United States Chief of Naval Operations 
sent a secret message to the Commander in Chief, U.S. Pacific Fleet which 
stated : 

EXECUTE AGAINST JAPAN UNRESTRICTED AIR AND 

SUBMARINE WARFARE. 145 
The message made no specification of the extent of the operational area 
in which "unrestricted" warfare was to take place but it is probable, in 
view of the command held by the addressee and the actual practice, that 
it was the Pacific Ocean areas. This interpretation is supported by answers 
given by Admiral Nimitz on May 11, 1946 to interrogatories put to him on 
behalf of Admiral Donitz at the request of the International Military 
Tribunal at Nuremberg: 

2. Q. Did the U.S.A. in her sea warfare against Japan announce 
certain waters to be areas of operation, blockade, danger, 
restriction, warning or the like? 



143 Id. at 313. 

144 See the text at notes 121-27 supra. 



To criticize particular parts of the judgment of the International Military Tri- 
bunal at Nuremberg is not, of course, the same as making a sweeping attack on war 
crimes trials in general. There is reason to believe that such trials incorporating 
basic standards of fairness are better than possible alternative courses of action in- 
cluding executing the accused without trial. For an effective answer to recommenda- 
tions to execute accused personnel without trial see Jackson, "The United Nations 
Organization and War Grimes Trials," 46 A.S.I.L. Proc. 196, 199-200 (1952). 

146 The text of the message is taken from a photographic copy of the original. The 
message was declassified on Dec. 2, 1960. It was also sent to other military addresses 
in the Pacific and further stated: "CINCAF INFORM BRITISH AND DUTCH. 
INFORM ARMY." 

Since the message was secret it could not have notified neutrals of the submarine 
operational area. 



88 



A. Yes. For the purpose of command of operations against Japan 
the Pacific Ocean areas were declared a theater of operations. 

3. Q. If yes, was it customary in such areas for submarines to attack 

merchantmen without warning with the exception of her own 
and those of her Allies? 
A. Yes, with the exception of hospital ships and other vessels under 
'safe conduct' voyages for humanitarian purposes. 

4. Q. Were you under orders to do so? 

A. The Chief of Naval Operations on 7 December 1941 ordered 
unrestricted submarine warfare against Japan. 1 - 



L46 



Appraisal 

One of the most obvious aspects of "the Pacific Ocean areas" is 
their great geographical extent. Considering the factual characteristics of 
the Pacific war, the area of the Pacific Ocean is not an unreasonable 
extent for the United States submarine operational area. 147 It is therefore 
not persuasive to argue that the United States operational area is illegal 
because of its size. 

In its judgment in the case of Admiral Donitz the International Military 7 
Tribunal dealt with United Kingdom and United States submarine opera- 
tional areas in the following paragraph : 

In view of all of the facts proved and in particular of an order of 
the British Admiralty announced on 8 May 1940, according to which 
all vessels should be sunk at night in the Skagerrak, and the answers 
to interrogatories by Admiral Nimitz stating that unrestricted sub- 
marine warfare was carried on in the Pacific Ocean by the United 
States from the first day that Nation entered the war, the sentence 
of Donitz is not assessed on the ground of his breaches of the inter- 
national law of submarine warfare. 148 
In substance this is a holding that Admiral Donitz, although guilty of 
violating the Protocol as to "neutral" vessels in operational areas, will not 
be punished in this respect because of what the Tribunal supposed to be 
similar submarine operational area warfare conducted by the United 
Kingdom and the United States. 



149 



146 40 I.M.T. 108, 109 (Document Donitz — 100); the same interrogation is read 
into the record of the proceedings in 17 I.M.T. 378-81. 

147 It is easier, a fortiori, to uphold the reasonableness of the geographic extent of 
the smaller German operational areas. 

148 1 I.M.T. 313. 

149 The same conclusion is reached in Robertson, "Submarine Warfare," JAG J. 3, 8 
(Nov. 1956). Compare Smith 212-13: 

The only inference which can be drawn from the passages quoted is that a war 
crime ceases to be punishable if the defense can prove that similar action was 
taken on the victorious side. 
For a characterization of the Donitz judgment as "confused" see Johnson, Book 



89 

As demonstrated above in appraisal of the German Second World War 
claims, those claims, and the warfare conducted under them, extended to 
the sinking of neutral merchant ships as well as enemy ones. It has also 
been pointed out that British submarine warfare in the Skagerrak and 
Kattegat did not extend to neutrals as a practical matter. In the same way, 
the Pacific Ocean areas were not frequented by neutral shipping after 
December 7, 1941. If there was a limited commerce conducted by neutral 
Soviet Union vessels during the Pacific war, both Japan 150 and the United 
States, the principal naval belligerents, were interested in avoiding attacks 
upon such vessels. 151 In any event, it is clear that the United States "un- 
restricted submarine warfare" in the Pacific was conducted without neutral 
involvement. 152 Consequently, United States submarine operational area 
warfare in the Pacific does not raise issues concerning its legality as applied 
to either genuine interneutral trade or to neutral vessels participating in 
the enemy economic warfare. 

Since no legal issue is presented by the application of the United States 
submarine operational area to Japanese warships, it will be appraised as 
applied to Japanese merchant ships. The Japanese merchant ships, like the 
British, were armed, reported submarine sightings, and attempted to ram 
or otherwise attack submarines. 153 In short, such merchant ships were 
functionally incorporated into the Japanese naval forces. Consequently, 
there can be no doubt but that these merchant ships were the lawful 
objects of "unrestricted submarine warfare," that is, attack without warn- 



Review, 27 Brit. Y.B.I.L. 508 (1950). 

For the view that art. 22 of the London Naval Treaty (1930) is obsolete see Kerr, 
"International Law and the Future of Submarine Warfare," 81 Nav. Inst. Proc. 
1105 (1955). 

150 Japanese submarine operational areas are not referred to in the judgment of 
the International Military Tribunal for the Far East. There is a reference to the 
alleged legality of attacking "unarmed enemy merchant ships" between Hawaii and 
the U.S. west coast in the proceedings. F.E.I.M.T. Proc. 27,296 (twenty seven thou- 
sand two hundred ninety-six). Japanese submarine warfare is considered in Ch. IV 
of the present study. 

151 Possibly the small numbers of such vessels and the limited area traversed by 
them on voyages in the North Pacific made this tactically feasible. 

153 A secret explanatory message of Dec. 22, 1941 from the U.S. Chief of Naval 
Operations to the U.S. Special Naval Observer, London made no express claim con- 
cerning neutrals. It stated: 

UNRESTRICTED AIR AND SUBMARINE WARFARE AGAINST JAPAN 
MEANS THAT SUBMARINES AND AIR MAY ATTACK ANY OBJEC- 
TIVE WHATSOEVER THAT IS JAPANESE OR IS CONTROLLED BY 
JAPAN OR IS OPERATING FOR THE DIRECT BENEFIT BENEFIT (sic) 
OF JAPAN. 

Text from photographic copy of original which was declassified March 29, 1961. 
^Admiral Nimitz so stated in response to questions #9 and #11. 40 I.MT. 

109-10. 



90 

ing within the operational area enforced by submarines. 154 These are the 
principal reasons for the conclusion of the legality of the United States 
submarine operational area in the Pacific. 

The submarine operational area may also be appraised in terms of 
reprisal. The message of December 7, 1941 contains no express indication 
that the unrestricted submarine warfare was to be justified as reprisal 
action. That Admiral Nimitz thought reprisal was the basis appears in his 
answers to other questions of the Nuremberg interrogatories : 

17. Q. Has any order of the U.S. Naval authorities mentioned in 
the above questionnaire concerning the tactics of U.S. sub- 
marines toward Japanese merchantmen been based on the 
grounds of reprisal? If yes, what orders? 
A. The unrestricted submarine and air warfare ordered on 7 
December 1941 resulted from the recognition of Japanese 
tactics revealed on that date. No further orders to U.S. sub- 
marines concerning tactics toward Japanese mechantmen 
throughout the war were based on reprisal, although specific 
instances of Japanese submarines committing atrocities toward 
U.S. merchant marine survivors became known and would 
have justified such a course. 

19. Q. On the basis of what Japanese tactics was the reprisal consid- 
ered justified? 
A. The unrestricted submarine and air warfare ordered by the 
Chief of Naval Operations on 7 December 1941 was justified 
by the Japanese attacks on that date on U.S. bases, and on 
both armed and unarmed ships and nationals, without warn- 
ing or declaration of war. 155 
It is well known that the German claim to establish submarine opera- 
tional areas in the First World War w^s based upon the argument of 
legitimate reprisal as response to allegedly unlawful British naval warfare. 
That claim has been upheld as valid in the present study. 156 By the same 
reasoning, it is clear that the present claim to a submarine operational 
area could also be upheld as a legitimate reprisal in response to Japanese 
violations of the traditional law. Aside from Admiral Nimitz' answers 



164 See the U.S. Navy Dept. Press Release of Feb. 2, 1946 entitled, "United States 
Submarine Contributions to Victory in the Pacific," pp. 13A-14, quoted in part in 
Tucker 66, n. 47. The press release assumed incorrectly that the sinking of Japanese 
merchant ships in the operational area was a violation of the London Naval Treaty, 
art. 22. 

If particular Japanese merchant ships, for example some deep-sea fishing boats, 
were not participating in the naval war, such boats could not be sunk lawfully without 
warning. 

165 40 I.M.T. 111. 

166 See the text accompanying notes 49-62 supra. 



91 

quoted above, there is no indication that reprisal has been used to justify 
the United States operational area. 

4. Submarine Operational Areas in Future General War 

The present analysis postulates a nonnuclear general war or, in the 
alternative, a general war with only limited use of nuclear weapons for 
tactical purposes. 157 It is assumed that a central objective of the political 
elites of states with the capability of conducting an all-out war of thermo- 
nuclear devastation is to avoid such a war. 158 In the type of general war 
postulated, a war similar to the World Wars, it is realistic to expect claims 
to establish submarine operational areas because some major states do not 
have the capacity to conduct independent naval operations on the high 
seas except through the extensive use of submarines. 159 

In projecting the future course of legal decision concerning submarine 
operational areas in general war it is necessary to accord some significance 
to the past course of decision. The course of decision in both World Wars, 
although frequently justified as reprisals, is actually a development of the 
customary law. This development has resulted in the adaptation of the law 
to permit the effective use of submarine operational areas as well as to 
permit the effective use of surface naval power. It would be highly 
unrealistic to conclude that the entire practice of naval warfare, both sub- 
marine and surface, in the two World Wars is comprised of merely tem- 
porary variations from the traditional law conditioned upon the existence 
of illegality in the conduct of war by the opposing belligerent. 160 The 
importance of the economic objective in general war indicates that this 
objective has been and will be energetically pursued in the future through 
submarine as well as surface naval power. The wartime perspective is 
reflected in Prime Minister Asquith's statement to the House of Commons 
on March 1, 1915: 

We are not going to allow our efforts ... to be strangled in a network 
of juridical niceties. . . . Under existing conditions there is no form 
of economic pressure to which we do not consider ourselves en- 
titled to resort. 161 



157 Such use of nuclear weapons is considered in Brodie, Escalation and the Nuclear 
Option (1966). 

158 See generally Kissinger, Nuclear Weapons and Foreign Policy (1957). 
"Only [Soviet] submarine operations would be significant in the great oceans." 

Garthoff 215. 

180 As to the surface enforced long-distance blockade, its indispensability is indicated 
in Prof. Medlicott's "assessment and perspective." 2 Medlicott 630-61. As to the 
submarine operational area, it has been indispensable to the United States as well as 
to other states. At the beginning of the Pacific war it was used before other offensive 
methods of naval warfare were available to the United States. 

Quoted in Seymour, American Diplomacy During the World War 28 (1934) 



1«1 



92 

It has been stated that the inadequacy of the International Military 
Tribunal's opinion in the case of Admiral Donitz is due in part to its ap- 
parent assumption that the claim to an operational area could only be 
upheld through the existence of sufficient surface naval power to exercise 
effective control. Consistent with this opinion, Mr. Colombos has, in 
substance, characterized submarine naval power as "naval weakness." 162 
The actual success of submarines in enforcing operational areas in the 
World Wars does not support the charge of "naval weakness." Submarine 
naval power is, of course, different from surface naval power in many 
respects. Nevertheless, the high degree of effective control manifested in 
submarine operational areas should not be rendered juridically inadequate 
by simply testing it in terms of the method of control exercised by surface 
naval power. Even if it should be concluded that submarines during the 
World Wars did not achieve sufficient control, it is clear that contempo- 
rary nuclear-powered and nuclear-armed submarines could achieve a 
much greater degree of control in the operational area. 

The concept of "freedom of the seas" has not outlawed submarine 
operational areas in past general wars. The best-known formulation of 
this concept appears in the second of President Wilson's fourteen points: 
Absolute freedom of navigation upon the seas, outside territorial 
waters, alike in peace and in war, except as the seas may be closed 
in whole or in part by international action for the enforcement of 
international covenants. 163 

It is not surprising that the British made a reservation to this point. 164 
In attempting to reassure them and obtain their agreement, at least in 
principle, President Wilson explained: 

Blockade is one of the many things which will require immediate re- 
definition in view of the many new circumstances of warfare develop- 
ed by this war. There is no danger of its being abolished. 165 
The outcome of President Wilson's attempt to obtain international sup- 
port for the freedom of the seas 166 was that it was not included in the 
Treaty of Versailles. The available evidence seems to indicate that con- 



( footnote omitted). President Seymour regarded Asquith's statement as going far 
"towards an admission of illegality." Id. at 40. 

162 Colombos 470. The sentence from which the quoted words are taken appears in 
full in the text accompanying supra note 73. 

163 [1918] Foreign Rel. U.S. Supp. 1 vol. 1, 15 (1933). 

164 Id. at 421-23. 
185 Id. at 428. 

166 See the account of the attempt in Seymour, op. cit. supra note 161 at 381-89. 
See also 2 Savage, Policy of the United States Toward Maritime Commerce in War 
158-60 (Dept. of State, 1936). 



93 

ceptions of the freedom of the seas will not outlaw submarine operational 
areas in future general wars. 167 

To the extent that general war including naval economic warfare is a 
future possibility, 168 claims to establish operational areas controlled and 
enforced by nuclear-powered submarines may be expected. The claims 
may be manifested in the actual conduct of operational area warfare, as 
was done by the United States in the Second World War, rather than in 
words. 169 It does not seem a realistic way of promoting human values, 
particularly in the light of the two World Wars, to contend that this use 
of an efficient military technique is unlawful. It is clear that such con- 
tentions have had little impact on the actual process of decision thus far. 
In addition, it is of central importance that the destruction of human 
and material values involved in the use of such operational areas is not 
disproportionate to their military efficiency. Consequently, it appears that 
the continued legality of this method of warfare is assured in general war. 
Another general war based on the pattern of the two World Wars does 
not, however, appear to be the most probable future type of war. 170 

C. CLAIMS TO ESTABLISH SUBMARINE OPERATIONAL 
AREAS IN LIMITED WAR SITUATIONS 

Limited wars with major powers as the participants and those with 
minor powers as the participants were referred to in Chapter I. The legal- 
ity of submarine operational areas in each limited war category should be 
appraised. 

1. Claims by Major Powers in Limited War 

It is clear that the coercive methods which are employed to achieve 
the objectives of limited war must be limited. Assuming that the bellig- 
erents comprise major powers wih great military capabilities, each 
must limit the extensity of the area it uses for coercive purposes. If this 



167 The doctrinal scope and content of "freedom of the seas" is indicated in 4 
Whiteman 501-633; 2 Hackworth 653-710. 

The limitations involved in the Grotian conception of the freedom of the seas are 
considered in Reppy, "The Grotian Doctrine of the Freedom of the Seas Re- 
appraised," \9'Fordham L. Rev. 243, 275-78 (1950). 

168 The indications are that the Soviet Union is not projecting a quick nuclear war 
in which economic warfare would count for little. See Garthoff passim. 

189 The United States conduct of submarine operational area warfare constituted 
the claim since the order to conduct such warfare was secret. See the text accom- 
panying note 145 supra. 

170 See the projection of the U.S. Chief of Naval Operations quoted in the text of 
Ch. I accompanying note 1 15. 



94 

is not done, the result may be an extension of the area of war beyond that 
consistent with the limited objectives of the war. 171 

The submarine operational area has been employed historically as a 
method of general war. The absence of claims to establish such areas 
should be taken as one indication that the war is to be limited in this 
respect. 172 It will be recalled that in general war situations, neutral in- 
terests in maintaining commerce with a belligerent were deemed to be of 
lesser importance than the belligerent interest in employing the submarine 
operational area. In limited war, the opposite result can be maintained 
more plausibly. It would be surprising indeed if the objectives of the bellig- 
erents, limited by definition, were accorded precedence over the interests 
of neutrals in maintaining commerce. 

The experience in the Korean War supports this analysis. That war 
manifested neither submarine operational areas nor other modern methods 
of general war such as the long-distance surface blockade. 173 The United 
States, in fact, maintained a traditional close-in naval blockade. 174 

In summary, submarine operational areas will most probably not be 
employed in limited wars between major powers because of the basic 
inconsistency between submarine operational areas as employed in the 
two World Wars and the objectives of limited war, rather than because 
of an interpretation of the Submarine Protocol of 1936. 175 If such areas 
should be employed at all they would be employed in a much more re- 
stricted manner than in the World Wars. This conclusion is also supported 
by the primacy of neutral commercial interests over belligerent interests 
in the context of limited war. 

2. Claims by Minor Powers in Limited War 

Some wars are limited in the sense that the belligerents are only 
capable of limited military efforts. In this type of war it may be predicted 
with some confidence that the interests of neutrals will be protected 
through their power and influence as opposed to that of the belligerents. 
The Nyon Agreement provides an illustration of this. 176 Anything except 
restricted submarine operational areas will probably be denied to the bellig- 
erents of they cause substantial inconvenience, much less danger, to the 
neutral states. It is unlikely that a minor belligerent would be permitted 



171 Osgood 243-48 stresses the importance of "geographical limitation." 

172 Osgood 240 refers to "the general requirement of the formulation and com- 
munication of limited objectives. . . ." 

173 See Cagle & Manson passim. 
17i Id. at 281-84. 

175 The International Military Tribunal's interpretation is considered and criticized 
in the text accompanying notes 112—28 supra. 

176 See the Nyon Agreement (1937) considered in the text of Gh. II accompany- 
ing notes 124-32. 



95 

to disrupt world trade by the employment of submarine operational areas 
of the kind associated with general war. If minor belligerents should make 
claims to establish such areas, stressing their military efficiency and neces- 
sity, the claims may well be outweighed by the claims of neutrals against 
their use. 177 In addition, a minor belligerent would probably not have 
sufficient submarine naval power to maintain a submarine operational 
area effectively. 

3. Claims to Establish Restricted "Operational Areas" 

A careful legal appraisal should avoid automatically ruling out the 
drastically restricted use of naval power either in limited war or in coer- 
cive situations short of limited war. 178 Whether it is termed "limited naval 
blockade," "quarantine-interdiction," some kind of "operational area," or 
given another label, one should be slow to condemn as illegal such limited 
measures especially when they are used to maintain world public order. 179 
This is particularly true where the principal alternatives may be the use 
of much more coercion including weapons of mass destruction. Whether 
or not submarines are employed in such uses of naval power including 
restricted "operational areas" would appear to make but little difference 
in a legal appraisal. 

In describing the use of coercion in the United States quarantine-inter- 
diction of Soviet Union missiles to Cuba in 1962, the present writer has 
stated : 

[T]he formulation and implementation of the naval quarantine- 
interdiction amounted to the least possible use of the military instru- 
ment. Any lesser use would have amounted to abandonment of the 
military instrument and exclusive reliance upon non-coercive pro- 
cedures which most certainly would have been ineffective without 
supporting military power. 15 



L80 



177 Seymour, op. cit. supra note 161 at 29 stresses the importance of the neutral role 
even in general war. 

178 See Powers, "Blockade : For Winning Without Killing," 84 Nav. Inst. Proc. 
No. 8, p. 61 (1958). 

Naval power or enforcement should not, of course, be used without reason. For 
an unpersuasive recommendation of the establishment of submarine defense identifi- 
cation zones (by supposed analogy to the U.S. Air Defense Identification Zones) 
which apparently gives inadequate consideration to possible retaliation, see Sweitzer, 
"Sovereignty and the SLBM," 92 Nav. Inst. Proc. No. 9, p. 32 (1966). 

179 The United Nations Charter art. 2(4) prohibits "the threat or use of force 
against the territorial integrity or political independence of any state. . . ." Art. 51 
recognizes the existence of "the inherent right of individual or collective self-defense." 
Together they constitute a minimum public order system in the sense of outlawing 
coercion for aggressive purposes while legalizing it for defensive purposes. 

180 Mallison, "Limited Naval Blockade or Quarantine-Interdiction: National and 
Collective Defense Claims Valid Under International Law," 31 Geo. Wash. L. Rev. 
355, 393 (1962) (footnotes omitted). 



96 

This is an example of the kind of coercion which should not be con- 
demned without consideration of the alternatives in the factual situation 
including the effects of other coercive methods as well as the effects of the 
abandonment of all coercion. 181 



181 Some apparently would not agree with the textual statement. See e.g. Wright, 
"The Cuban Quarantine," 57 A.J.I.L. 546 (1963). Prof. Wright's legal analysis 
appears to be based upon the factual conclusion that the missiles involved only a 
commercial transaction in time of peace. 

It is difficult to find that the Soviet Union violated any obligation of inter- 
national law in shipping missiles to, and installing them in, Cuba, at the request 
of the Castro government. Under general international law, states are free to 
engage in trade in any articles whatever in time of peace. 
Id. at 548-49 (footnote omitted). 



CHAPTER IV 

CLAIMS CONCERNING LAWFUL OBJECTS AND 
METHODS OF BELLIGERENT ATTACK 

The claims and counterclaims which are appraised in the present chap- 
ter include those concerning the highly coercive or violent combat inter- 
actions between belligerents. The most general claim is to attack certain 
objects through the employment of particular methods or techniques of 
attack. The countering claim is that particular objects are legally immune 
and that particular methods are unlawful. 

The basic legal principles of military necessity and humanity provide 
broad guidance in distinguishing between lawful and unlawful objects of 
attack. 1 In general, military necessity permits the selection as targets of 
those objects which constitute the bases of the enemy belligerent's military 
power. The humanity principle, in comparable generalization, prohibits 
the selection of objects which are not effective bases of enemy military 
power. Combatants who become disabled or helpless, for example, should 
no longer be made objects of attack. In the same way, these principles are 
used to determine the particular coercive methods which may be employed 
lawfully against the enemy. The entire population of the enemy belliger- 
ent state constitutes an indispensable base of its power. It is usual, how- 
ever, to divide the population between combatant members of the armed 
forces and civilian noncombatants. It is obvious that each of these cate- 
gories has a different relationship to the enemy military power. Combat- 
ants may be made direct objects of attack consistent with the law and 
highly destructive methods may be employed lawfully against them. Non- 
combatants may not be attacked directly and it is not lawful to employ 
highly destructive methods against them. Professor Lauterpacht has stated 
the central point: 

It is clear that admission of a right to resort to the creation of terror 
among the civilian population as being a legitimate object per se 
would inevitably mean the actual and formal end of the law of war- 
fare. For that reason, so long as the assumption is allowed to sub- 
sist that there is a law of war, the prohibition of the weapon of 



1 The basic principles are considered in the text of Ch. I accompanying notes 
75-83. 

97 



98 

terror not incidental to lawful operations must be regarded as an 

absolute rule of law. 2 

The conceptual distinction between combatants and noncombatants is 
clear enough. A real difficulty, however, is caused by the blurring in fact 
of the line between combatant and noncombatant which has taken place 
in the present century. 3 The result is that in some coercive situations 
combatants and noncombatants are not distinguishable. 4 

In addition to protecting noncombatants, a major objective of this 
branch of international law is to regulate the processes of coercion and 
violence in such a way as to permit and assist the transition from coercive 
to peaceful procedures. The detailed rules prescribing the limits on vio- 
lence involve two basic assumptions. 5 One is that widespread, wanton, 
and unnecessary destruction of values tends permanently to embitter 
relations between enemies so that the return to a constructive peace is 
either very difficult or impossible. The other is that a peace of extermina- 
tion, such as that imposed by Rome upon Carthage, is not a legally 
permisssible objective. If it were lawful, all other limitations would 
become meaningless. 

In both World Wars, difficult legal issues were presented by the com- 
bat interactions between merchant ships and submarines. The present 
chapter emphasizes such combat interactions involving claims concerning 
objects and methods of attack. Claims concerning bombardment as a 
method of warfare, including strategic nuclear bombardment, may be 
considered more conveniently in Chapter V. 

A. THE TRADITIONAL LAW CONCERNING OBJECTS AND 
METHODS OF ATTACK IN NAVAL WARFARE 

Chief Justice Marshall commented in 1815: "In point of fact, it is be- 
lieved that a belligerent merchant vessel rarely sails unarmed. . . ." 6 In the 
era when privateering and piracy were widespread, it was the general prac- 
tice to arm nonbelligerent merchant ships as well. 7 Although the merchant 
vessel's armament was designed for self-defense, this armament enabled it 
to present a danger to any vessel whether privateer, pirate or warship. In 
this factual context, warships were not under obligation to give unusual 



2 "The Problem of the Revision of the Law of War," 29 Brit. Y.B.I.L. 360, 369 
(1952). 

3 See Oppenheim-Lauterpacht 207-08. 

* The difficulties in identifying and protecting noncombatants in contemporary 
war are analyzed in Nurick, "The Distinction Between Combatant and Noncom- 
batant in the Law of War," 39 A.J.I.L. 680 (1945). 

5 See the similar formulation of basic assumptions in McDougal and Feliciano 43. 

"The Nereide, 9 Cranch 388, 426 (U.S. 1815). 

7 Hyde 1990. 



99 

consideration to merchant ships which were themselves capable of initiat- 
ing attack. 

After the abandonment of privateering and the suppression of piracy, 
it became exceptional for a merchant ship to be armed. 8 During the 
second half of the nineteenth century warships were greatly improved in 
both offensive armament and in defensive armor plating. 9 These and 
other technical advances made the surface warship highly specialized for 
military purposes and a very different ship from the merchantman. As a 
result, merchant ships, even if armed, posed only a minor danger to such 
warships. This military weakness of the merchant ship in relation to the 
overwhelming military power of the surface warship afforded ample 
reason to establish the principle that the merchantman and its personnel 
were entitled to special protection and, in particular, could not be law- 
fully attacked without warning. 

The custom developed in time of war whereby a belligerent warship, 
rather than attacking a merchant ship without warning, called upon it 
to surrender or to submit to the procedure of visit and search. 10 The war- 
ship was legally justified in attacking only if the merchantman failed to 
stop, attempted to escape, or otherwise resisted. In view of the military 
superiority of the warship it was probably not entitled to use more force 
to compel the submission of the merchant ship than was reasonably re- 
quired in the circumstances. 

1. Methods: Visit, Search, and Capture 

In the context just described, the capture of merchant ships rather 
than their destruction became the regular method employed by warships. 11 
In the same way, the precedures of visit and search were employed reg- 
ularly to enable boarding officers to determine the existence of probable 
grounds for capture. 12 

The following description of the procedures of visit, search, and capture 
was prepared by the Harvard Research in International Law. Although 
published in 1939, it reflects more accurately the principal procedural 
steps as developed in earlier times: 

(1) In order to exercise the right of visit and search, a warship 
signals the vessel as by radio or by firing a blank charge. If such 
notice does not suffice, the warship may fire a projectile across the 
bows of the vessel. Before this or simultaneously, the warship shall 
hoist its flag, above which at night a light shall be placed. The 



8 Ibid. 

9 Potter & Nimitz 237-43. 

10 See McDougal & Feliciano 589. 
"Smith 126-28. 

"Hyde 1958-59. 



100 

vessel shall reply to the signal by hoisting its flag and by stopping 
at once. Thereupon the warship sends to the vessel a boat manned 
by an officer and by unarmed men of whom not more than two 
shall accompany the officer on board the vessel. The boarding party 
may examine the ship's papers and may interrogate persons on board. 
It may inspect the cargo but the cargo may not be broken open 
or removed. Postal correspondence may not be opened or removed. 

(2) If the vessel when summoned does not stop, attempts to escape, 
or resists visit and search, it may be compelled to stop by force and 
the belligerent shall not be responsible for resulting injury to life or 
property. 

(3) If the visit and search gives rise to a reasonable suspicion 
that the vessel or its cargo is subject to condemnation or preemption, 
the vessel may be captured and brought or sent into port for prize 
proceedings. 13 

Paragraph (1) indicates the somewhat ceremonial character of visit 
and search. The requirement that the men in the boat be unarmed reflects 
the historical situation in which the warship possessed great military supe- 
riority over the merchant ship being visited. The requirement that each 
vessel hoist "its" flag was designed to outlaw the use of false flags as a 
ruse. Although the Harvard Research refers to radio, this means of com- 
munication did not exist during most of the time that visit and search 
was a viable naval procedure. At that time information was obtained by 
visit and search which could not be obtained or communicated in other 
ways. 

It should be noticed that even under the traditional law, as indicated 
by paragraph (2) above, the warship is entitled to use force where the 
merchant vesssel offers resistance. In extreme cases, this included sinking 
the merchant vessel where the resistance could not be overcome otherwise. 

The rights of visit, search, and capture belonged only to the duly com- 
missioned warships of belligerent states. 14 They were directed at merchant 
ships, whether belligerent or neutral, and could be exercised anywhere 
on the high seas or in belligerent territorial waters but not in neutral ter- 
ritorial waters. 15 The central purpose was to ascertain the relevant facts 
concerning the merchant ship including its enemy or neutral status and 
the origin, destination, and character of the vessel and its cargo. 16 It at 
least a prima facie case for capture was made out as a result of the visit 
and search, the warship then had legal authority to make the capture 



13 Harvard Research, Naval War 535-36. See the description of the traditional 
procedure in Tucker 336-38. 

" Stone 591 ; Oppenheim-Lauterpacht 848-49, 861-63. 

15 Oppenheim-Lauterpacht 849. 

16 Id. at 848: Tucker 332. 



101 

even though the prize court might later release the merchant ship in the 
light of further evidence subsequently developed in the case. 17 The right 
of visit and search was ancillary to the right of capture rather than being 
independent. 18 Thus, if there was reliable evidence, extrinsic to the mer- 
chant vessel itself, indicating its liability to capture, it could be lawfully 
captured without visit and search. 19 

2. Objects : Enemy Ships and Goods 

Under the traditional law as in the modern law, warships are subject 
to capture or destruction. It is, of course, lawful to attack warships with- 
out warning. Where an enemy public vessel is captured its title is immedi- 
ately transferred to the captor state and prize proceedings are not neces- 
sary. 20 

There is a basic distinction in international law between the treatment 
of enemy property on land and the treatment of enemy property at sea. 
The law of land warfare makes a fundamental distinction between public 
and private property. The general rule is that private property on land is 
immune from capture by the enemy, 21 with some exceptions based upon 
urgent military necessity. The law of naval warfare does not provide 
immunity for enemy private property (ships and cargoes) at sea. The 
reason for this differential treatment is not difficult to ascertain. In land 
warfare, the military occupation of enemy territory prevents the enemy 
belligerent state from exercising control over the property and using it for 
war purposes. 22 In these circumstances no substantial military interest is 
frustrated by leaving private property with its private owner. In naval 
warfare, however, it is necessary to obtain control of enemy private prop- 
erty through capture or destruction in order to prevent its possible use in 
behalf of the enemy's war effort. Even where the enemy state does not 
control the transactions of its private traders, it is recognized that the net 
result of the transactions is to strengthen the enemy war effort. Enemy 
private property, consequently, has always been a lawful object of appro- 
priation or destruction in naval warfare except for certain immunities. 23 

The traditional law required that enemy private ships which were cap- 
tured must be brought to port and subjected to prize proceedings to deter- 
mine on the evidence before the Court whether they were actually enemy 



17 Hyde 2024. 

18 Id. at 1958. 

19 Id. at 1958-59. 

20 Oppenheim-Lauterpacht 475. 

21 Art. 46 of the Regulations Annexed to Hague Convention IV Respecting the 
Laws and Customs of War on Land (1907) provides in relevant part: "Private 
property cannot be confiscated." 

22 See generally McDougal & Feliciano 809-24. 

23 Tucker 74-75 ; Oppenheim-Lauterpacht 465. 



102 

ships and so subject to capture. 24 In exceptional circumstances it was 
legally permissible to destroy an enemy merchant ship after capture if 
the personnel and ship's papers were removed to a place of safety. 25 When 
this was done the Prize Court must be subsequently satisfied that both 
the capture and the destruction were legally justified. 26 Otherwise, the 
capturing state was liable in damages to the enemy owner. 

A belligerent was traditionally entitled to capture enemy private goods 
carried under a neutral flag. 27 The British adhered to this view in the 
face of opposition from other states which argued for the principle of 
"free ships, free goods." 28 France, in opposition to Great Britain and 
other states, claimed the right to capture neutral goods on enemy vessels. 29 

The British and the French were allied against Russia during the 
Crimean War. As a wartime expedient they agreed that Great Britain 
would not seize enemy goods on neutral vessels and that France would 
not appropriate neutral goods on enemy vessels. 30 Both agreed that they 
would not employ privateers. 31 After the termination of the war the 
principal maritime powers agreed to the Declaration of Paris (1856) 
which provided: 

1 . Privateering is, and remains abolished ; 

2. The neutral flag covers enemy's goods, with the exception of 
contraband of war; 

3. Neutral goods, with the exception of contraband of war, are 
not liable to capture under enemy's flag; 

4. Blockades, in order to be binding, must be effective: that is to 
say, maintained by a force sufficient really to prevent access to the 
coast of the enemy. 32 

The Declaration of Paris did not purport to change the old rule that 
private enemy ships and private enemy goods on them could be cap- 
tured. 33 The British had agreed to give up the right to seize enemy goods 
under the neutral flag in return for the French agreement to refrain from 
capture of neutral goods on enemy vessels. The agreement to abolish 
privateering was regarded as highly significant but in reality was less so 
since privateering was already technologically obsolescent in view of the 



24 Oppenheim-Lauterpacht 482-86. 

25 Id. at 487-88. 

26 Id. at 488. 

27 Smith 158; Oppenheim-Lauterpacht 459. 

28 Smith 159. 

29 Ibid. 

30 Id. at 160; Oppenheim-Lauterpacht 460. 

31 Smith 160. 

33 The text of the Declaration appears in 1 Savage, Policy of the United States 
Toward Maritime Commerce in War 381, n.2 (Dept. of State, 1934). 
33 Oppenheim-Lauterpacht 462. 



103 

increasing specialization of warships. Since a principal purpose of the 
Declaration was to protect private property, it is probable that the enemy 
goods referred to in the second article did not include state-owned enemy 
goods. 34 The rule embodied in this article was substantially frustrated 
a few years later in the American Civil War by the development of the 
doctrine of continuous voyage. 35 This doctrine was used to look beyond 
the stated or nominal destination of goods to ascertain whether or not 
their ultimate destination was the enemy. The Declaration was abandoned 
by both sides in the early part of the First World War. 



36 



3. Objects: Neutral Ships and Goods 

The traditional law subjected neutral ships and goods to capture 
only where specific rights of the capturing belligerent had been violated. 37 
The grounds for the capture of neutral ships included breach of blockade, 
resistance to visit and search, carriage of contraband, and some other types 
of assistance to the enemy belligerent which were characterized as "un- 
neutral service." 38 In order to justify capture of a neutral merchant ship 
for breach of the traditional close-in blockade it was necessary to meet 
certain requirements including proper notification of the blockade to 
neutrals. In order to impose liability to capture for carriage of contraband, 
notification to neutrals of the contraband list was required. The threefold 
classification of free goods, conditional contraband, and absolute contra- 
band was employed to determine the military value of the goods to the 
enemy. 39 "Unneutral service" included both the transportation of persons 
on behalf of the enemy and the transmission of intelligence to the enemy. 
These situations were regarded as roughly analogous to carrying contra- 
band and resulted in subjecting the merchant vessel involved to treatment 
similar to that for carrying contraband. 40 Another type of unneutral 
service arose when the neutral merchant vessel toook a direct part in the 
hostilities or acted under the direct orders of an agent of the enemy govern- 
ment such as sailing in a convoy protected by enemy warships or transport- 
ing enemy troops. In such situations the status of the neutral merchant 
vessel was assimilated to that of an enemy one and it would thus be ex- 
posed to capture and condemnation in prize as if it were an enemy. 41 



34 See the commentary in Oppenheim-Lauterpacht 461, n. 1 ; Smith, "The Declara- 
tion of Paris in Modern War," 55 L.Q. Rev. 237, 238-42 (1939). 

35 Oppenheim-Lauterpacht 461; Savage, op. cit. supra note 32 at 117-18. 
38 Smith 163. 

37 Oppenheim-Lauterpacht 861. 

38 See generally Smith 127-28. 

19 The classification is considered in the text of Ch. Ill accompanying notes 8-11. 
See Oppenheim-Lauterpacht 799-808. 

40 Oppenheim-Lauterpacht 833-38. 

41 Id. at 839-40. 



104 

There were significant legal differences between the capture of enemy 
and neutral merchant vessels. 42 Enemy merchant vessels were subject to 
capture generally for the purpose of appropriating them and their cargo 
pursuant to the right of a belligerent to capture and appropriate enemy 
private property at sea. The capture itself was a provisional appropriation 
and it was subject to confirmation through the prize court proceedings. 
The neutral merchant vessel could be lawfully captured and condemned 
only where it had violated specific rights of the belligerent. 

The unratified Declaration of London (1909) 43 represented an attempt 
to provide an international codification of the traditional law. Among 
other detailed provisions, it contained a list of free goods 44 which were 
"not susceptible of use in war" and which belligerents were prohibited 
from treating as either absolute or conditional contraband. 45 Mr. Arnold- 
Foster has commented critically upon this aspect of the Declaration: 
It put iron ore on the free list, so that all such ore would be free to 
pass straight through a British blockade to Krupps' munition works 
at Essen. Yet the foundation of modern war potential is steel: a 
nation's capacity to produce steel is one of the surest measures of its 
military strength. 

Rubber for motor tyres was on the free list, although, as was soon 
found in the war of 1914, much of the mobility of modern armies 
depends on motor transport. The Declaration authorized seizure of 
guns and shells, but not the metals for making them: explosives 
might be seized but not cotton or nitrates. 46 

At the beginning of the First World War the United States invited the 
belligerents to adhere to the Declaration. 47 Germany and Austria-Hungary 
agreed to do so conditioned upon Allied agreement which was not forth- 
coming. 48 Thereafter, the Declaration was swept away by the reprisal 
orders of the British and the actual economic warfare practices of the 
Germans. 

In summary, the traditional law concerning objects and methods of 
attack was based upon certain factual conditions which actually existed 



43 Id. at 862. See generally Colombos, A Treatise on the Law of Prize (3rd ed. 
1949) ; Garner, Prize Law During the World War (1927). 

43 The text of the Declaration appears in 2 Savage, Policy of the United States 
Toward Maritime Commerce in War 163 (Dept. of State, 1936). 

The U.S. Naval War Code (1900) was an earlier codification which was with- 
drawn in 1904. It was prepared by Admiral Stockton (President of the U.S. Naval 
War College and later President of The George Washington University). See U.S. 
Naval War College, International Law Discussions 1903 101 (1904). 

44 Art. 28. 

45 Art. 27. 

46 Arnold -Foster, The New Freedom of the Seas 42-43 (1942). 

47 Savage, op. cit. supra note 43 at 1. 

48 Ibid. 



105 

in the second half of the nineteenth century. The merchant vessel's im- 
munity from attack without warning was based on its military impotence 
in relation to the warship. Merchant vessels were not only privately owned 
but were also privately controlled. Specifically, the private owner, whether 
in peacetime or in wartime, determined the voyage and the cargo. It is 
clear that these factual conditions only concerned surface vessels since 
submarines were not demonstrated to be effective naval units until 1914 
and 1915. It is probable that the Declaration of London was obsolete in 
1908 and 1909 when it was written. It was demonstrated to be obsolete 
beyond any reasonable doubt in the first half of the First World War. 49 
During the same time, the international law of prize became increasingly 
obsolescent. 50 

B. CLAIMS CONCERNING OBJECTS AND METHODS OF 
ATTACK IN GENERAL WAR 

In Chapter III some consideration was given to the objects and methods 
of belligerent attack which were closely related to submarine operational 
areas. It was there concluded that visit and search at sea was a hazardous 
undertaking for surface warships as well as for submarines in modern 
conditions of general war at sea. 51 It was also concluded that the utiliza- 
tion of Q-ships as an antisubmarine measure made it even more hazardous 
for submarines to undertake the traditional procedure of visit and search. 52 
It will be recalled that Q-ships appeared to be innocent merchantmen 
but were in reality heavily armed warships. 

1. Capture or Destruction of Enemy Warships 

Only belligerent warships are legally empowered to make an attack 
upon warships of the enemy belligerent. 53 Since submarine warships have 
the same status as lawful combatant units possessed by surface warships 
they are similarly empowered to attack the warships of the enemy belliger- 
ent. One of the tactical functions of attack submarines is to attack enemy 
submarines. 54 The same basic legal doctrines apply to such naval engage- 
ments as to those between surface warships. 



49 "From July 7, 1916, the Declaration was no longer applied, even in part." 
Oppenheim-Lauterpacht 634. 

50 Oppenheim-Lauterpacht 877. 

It would not therefore, it is believed, be consistent with the function of an im- 
partial science of International Law to maintain that there exists at present a 
working body of generally agreed rules of prize law, in particular in its bearing 
upon the rights and duties of neutrals. 
Id. at 877-78. 

51 See the text of Gh. Ill accompanying note 21. 

62 See the text of Ch. Ill accompanying notes 56, 57. 

53 Oppenheim-Lauterpacht 467. 

6 *See Andrews, "Submarine Against Submarine," Naval Review 1966 42 (1965). 



106 

All enemy warships including naval auxiliaries, whether armed or un- 
armed, are lawful objects of attack without warning 55 and without regard 
to whether the attack takes place in a submarine operational area or 
elsewhere. Attack upon enemy warships may be made anywhere on the 
high seas or in the territorial waters of any belligerent state but not in 
neutral territorial waters. 

During both World Wars warships were expensive and valuable vessels 
and their capture by the opposing belligerent would be militarily desirable. 
As a practical matter, however, there were relatively few instances of 
capture of warships. Among these instances, a small number of submarines 
were captured. 56 In spite of the desirability of capture, the naval technol- 
ogy during the World Wars and particularly the long-range effectiveness 
of both gunfire and torpedoes made the destruction of enemy warships the 
normal attack objective. 

2. Capture or Destruction of Enemy Merchant Ships 

An enemy merchant ship, as well as its cargo, represents considerable 
economic value. Consequently, the interests of a belligerent would be most 
obviously served by capturing such a ship and having it and its cargo con- 
demned by the prize court. 57 Although this is a lawful procedure and 
there may still be rare occasions where it can be employed, it is clear that 
capture was a highly unusual situation in both World Wars. 

a. WORLD WAR I 

In 1913 the British Admiralty announced the arming of a number 
of merchant vessels. 58 The measure was stated to be a response to the 
danger presented by foreign powers which claimed the right to convert 
merchant ships into warships either in port or on the high seas. The 
announcement stressed that the British merchant vessels which were to be 
armed would retain their status as private merchantmen since they were 
armed for defensive purposes only. It was also emphasized that their status 
would be entirely different from that of the British armed merchant 
cruisers which would be commissioned as regular warships in the event 
of war. Thus, the United Kingdom at the beginning of the First World 
War had a number of merchant ships which were stated to be armed 



55 Oppenheim-Lauterpacht 465—66. 

56 Submarine captures are described in Potter & Nimitz 562; Roskill 58-59; Roskill, 
The Secret Capture (1959); United Kingdom Central Office of Information, The 
Battle of the Atlantic 33 (1946). 

57 See Phillips, "Capture at Sea in Perspective," 91 Nav. Inst. Proc. No. 4, p. 60 
( 1 965 ) ; Richmond, "The Value of the Right of Capture at Sea in Time of War," 
9 Brit. Y.B.I.L. 50 (1928). 

58 The text of the announcement by Winston Churchill is in [1916] Foreign Rel. 
U.S. Supp. 187-88 (1929). 



107 

against other dangers but which, in the actual event, could use their arms 
against submarines. 59 

It has been stated previously that the principal objects of attack of 
German submarines at the beginning of the war were enemy warships 
and that the submarines were later redirected against enemy merchant 
vessels. In the early part of the war German submarines made at least 
some attempt to comply with the traditional procedures of visit and search. 
The arming of British merchant ships and the use of the arms against 
German submarines, along with other antisubmarine activities, did not 
facilitate this attempt. It soon became apparent that even a British armed 
merchant ship sailing alone presented a very real military danger to Ger- 
man submarines which attempted to comply with the traditional law. The 
predictable result of the new situation was that considerations of military 
necessity, as well as simple self-preservation, led to the submarines remain- 
ing submerged and making torpedo attacks without warning. The best- 
known case involving sinking without warning was the Lusitania which 
has been referred to earlier. 60 The only realistic alternative to this sub- 
marine tactic was to abandon effective use of the submarine. In this situa- 
tion the British argued the inhumanity, and consequent illegality, of sub- 
marine attacks without warning on merchant vessels. While this had 
considerable impact as propaganda, it did not have a corresponding in- 
fluence upon the actual conduct of naval warfare. After the convoying 
of merchant ships was adopted by the Allies during the First World War 61 
it was difficult enough for a German submarine to avoid the naval escorts 
and make a successful attack without warning upon Allied merchant ships 
in a convoy. As a practical matter, it was impossible for submarines to 
capture convoyed ships. In both World Wars, Allied sea power drove Ger- 
man merchant ships from the high seas in a very short time. 62 When the 
capture of a German merchant ship was attempted, the practice of at- 
tempting scuttling to avoid capture was usually employed. 63 



59 McDougal & Feliciano 563 state that the "defensive" arming of merchant ships 
represents a revival of "an ancient usage that had disappeared with the abolition 
of privateering and the development of modern naval forces." (footnote omitted) 

60 See the text of Ch. Ill accompanying notes 39-42. 

The sinking of the Sussex on March 24, 1916 was also an important case. The 
principal United States note on this case is in [1916] Foreign Rel. U.S. Supp. 232 
(1929). See also Buehrig 48-55. 

"Convoy was not adopted until mid-1917. Potter & Nimitz 466-70; 3 Fayle, 
Seaborne Trade: The Period of Unrestricted Submarine Warfare 128-47 (1924). 

The role of Admiral Sims, the Commander of U.S. Naval Forces in European 
Waters, in obtaining adoption of the convoy is described in Morison, Admiral Sims 
and the Modern American Navy 337-63 (1942). 

62 Roskill 36. 

83 See e.g. the attempted scuttling of the German blockade runner Odenwald on 
Nov. 6, 1941 described in Karig, Battle Report: The Atlantic War 148 (1946). 



108 

The result of this, as stated previously, was that the Declarations of 
Paris and London were no longer susceptible of application in the new 
factual context. Professor H. A. Smith has provided apt summary con- 
cerning the Declaration of Paris, after indicating that it must be interpreted 
"in the light of the political and economic structure of the mid-nineteenth 
century" : 

If we are again confronted with the facts for which the Declaration 
laid down the law, then that law must be applied to those facts. That 
is to say, if we can discover a genuine enemy private merchant carry- 
ing on his own trade in his own way for his own profit, then we must 
admit that his non-contraband goods carried in neutral ships are 
immune from capture at sea. Under the conditions of the modern 
socialistic world such a person is not easily to be found. In the books 
of the last generation he was commonly called the 'innocent mer- 
chant', and the disappearance of this phrase from the literature of 
our day has its own significance. To-day he has become a disciplined 
individual mobilised in the vast military organization of the totalitarian 
State. It would be a defiance both of the letter and the spirit of the 
Declaration of Paris to bring within its protection the mobilised 
forces of the enemy. 64 

In its role as the honest neutral broker between the naval belligerents 
the United States sought a modus vivendi which would be acceptable to 
both the United Kingdom and Germany. 65 On January 18, 1916 Secretary 
of State Lansing made a proposal to the British Government which was 
designed to "bring submarine warfare within the general rules of inter- 
national law and the principles of humanity without destroying its effi- 
ciency in the destruction of commerce ..." 66 If the British accepted 
he would then press it upon the Germans. Its central part stated: 
[SJubmarines should be caused to adhere strictly to the rules of inter- 
national law in the matter of stopping and searching merchant vessels, 
determining their belligerent nationality, and removing the crews 
and passengers to places of safety before sinking the vesssels as prizes 
of war, and that merchant vessels of belligerent nationality should 
be prohibited and prevented from carrying any armament whatso- 
ever. 67 

Among the propositions upon which the note was stated to be based 
were these two: 

A merchant vessel of enemy nationality should not be attacked with- 
out being ordered to stop. 



* 4 Smith, "The Declaration of Paris in Modern War," 55 L.Q. Rev. 237, 249 
(1939). 



85 See Buehrig 40-44. 

66 [1916] Foreign Rel. U.S. Supp. 146 (1929). 



67 Id. at 147-48. 



109 

An enemy merchant vessel, when ordered to do so by a belligerent 
submarine, should immediately stop. 68 
In concluding the note Secretary Lansing observed : 

I should add that my Government is impressed with the reason- 
ableness of the argument that a merchant vessel carrying an armament 
of any sort, in view of the character of submarine warfare and the 
defensive weakness of undersea craft, should be held to be an auxiliary 
cruiser and so treated by a neutral as well as by a belligerent govern- 
ment, and is seriously considering instructing its officials accordingly. 69 
The proposal appeared to be a compromise which would exact conces- 
sions from each side while providing some recompense. The Allies were 
to be required to disarm their merchant ships and to cooperate with 
submarines attempting to exercise visit and search. Since the traditional 
law permitted capture, Germany would be legally entitled to capture 
Allied merchantmen. In return, the merchant ships of the Allies were not 
to be subjected to attack without warning. Further, it was possible that 
the United States would treat a merchant vessel with any kind of armament 
as "an auxiliary cruiser," that is, a warship. 

Certain practical considerations, however, made the concessions to Ger- 
many more apparent than real. German submarines could not carry prize 
crews to place aboard captured merchantmen. In addition, with Allied 
supremacy on the surface of the seas, such a captured merchantman would 
shortly be recaptured or sunk by Allied naval forces. Germany could not 
sink the merchant vessels as prizes unless the ship's boats were to be consid- 
ered a place of safety. 70 It is difficult to envision any situation other than 
calm weather and close proximity to land where the lifeboats actually 
would be such a place of safety. In view of these factors, it is doubtful 
that Germany could have accepted the proposal even if the Allies had done 
so. There was, however, no disposition on the part of either the United 
Kingdom or France to agree to it. The United States Ambassador in 
London reported that the proposal was regarded there as wholly in favor 
of Germany 71 and that if the United States persisted in advancing it this 
action would be viewed as "unfriendly interference." 72 Secretary Lansing 
had invoked humanity in presenting the proposal, but it was not realistic 
to expect the belligerents to give humanity priority over considerations of 
military efficiency. 

One result of the United States proposal was that it gave Germany an 



**Id. at 147. 
69 Id. at 148. 



70 



Prof. G. G. Wilson has emphasized that safety refers not to the same comforts 
enjoyed before destruction of the vessel but to "the same absence of risk to life." "The 
Submarine and Place of Safety," 35 A.J.I.L. 496, 497 (1941). 

71 [\9\6] Foreign Rel. U.S.Supp. 151 (1929). 

72 Id. at 152, 153. 



110 

opportunity to reevaluate its position on armed merchant vessels. Germany 
had captured a set of British Admiralty confidential instructions to armed 
merchant ships on the British steamer Woodfield. These instructions, in 
the German view, provided conclusive evidence of the illegal methods of 
warfare employed by British armed merchantmen. The Woodfield instruc- 
tions provided in part: 

If a submarine is obviously pursuing a ship by day, and it is evident 
to the master that she has hostile intentions, the ship pursued should 
open fire in self-defense, notwithstanding the submarine may not have 
committed a definite hostile act, such as firing a gun or torpedo. 73 
It is interesting to apply this instruction to the situation where a sub- 
marine attempts to exercise the right of visit and search. The merchant 
ship master may reasonably believe that the submarine has "hostile inten- 
tions," so he may open fire first. In fact, almost any approach by a sub- 
marine could be regarded as pursuit of the merchant ship under the 
instructions. 74 

On February 10, 1916 the United States Ambassador in Germany sent 
the Secretary of State a German Government memorandum on the treat- 
ment of armed merchantmen. It stated, inter alia: 

The German Government has no doubt that a merchantman as- 
sumes a warlike character by armament with guns, regardless of 
whether the guns are intended to serve for defense or attack. It con- 
siders any warlike activity of an enemy merchantman contrary to 
international law, although it accords consideration to the opposite 
view by treating the crew of such a vessel not as pirates but as 
belligerents. 75 
The conclusion was that: 

In the circumstances set forth above, enemy merchantmen armed 
with guns no longer have any right to be considered as peaceable 
vessels of commerce. Therefore the German naval forces will receive 
orders, within a short period, paying consideration to the interests 
of the neutrals, to treat such vessels as belligerents.' 



76 



73 Id. at 191, 196. 

74 Shortly after the start of the First World War the British had given the United 
States Government: 

the fullest assurances that British merchant vessels will never be used for pur- 
poses of attack, that they are merely peaceful traders armed only for defence, 
that they will never fire unless first fired upon, and that they will never under any 
circumstances attack any vessel. 

Id. at 188. 

76 [1916] Foreign Rel. U.S. Supp. 163, 164 (1929). 

76 Id. at 165. 

The German memorandum of February 10, 1916 was modified slightly in a further 

note of February 28, 1916 which stated in relevant part: 

The orders issued to the German naval commanders are so formulated that 



Ill 

The German reevaluation concerning merchant ships as the objects of 
submarine attack set forth in this note was based principally upon the 
distinction between armed and unarmed merchant ships. This placed the 
burden upon the submarine commander to make sure that a particular 
merchantman was armed before the submarine could attack without warn- 
ing. As a practical matter, this probably resulted in a number of Allied 
armed merchant ships not being subjected to attack without warning 
because of uncertainty concerning their armament. Consistent with this 
note, Germany could still apologize for sinking the unarmed belligerent 
merchant ship Lusitania and state that it was contrary to instructions for 
German submarines to sink unarmed merchantmen. 77 

The United States Government issued a further statement on the status 
of armed merchant ships on March 25, 1916. This "memorandum," which 
was not labeled a reply to the German memorandum, provided, inter alia: 
A presumption based solely on the presence of an armament on a 
merchant vessel of an enemy is not a sufficient reason for a belligerent 
to declare it to be a warship and proceed to attack it without regard 
to the rights of the persons on board. Conclusive evidence of a purpose 
to use the armament for aggression is essential .... [A] belligerent 
warship can on the high seas test by actual experience the purpose 
of an armament on an enemy merchant vessel, and so determine by 
direct evidence the status of the vessel. 78 

This United States memorandum represented a return to pro-Allied 
policy in the guise of a return to the traditional law. 79 The German 
memorandum had accepted full responsibility for determining whether 
or not particular merchant ships were armed. The United States memo- 
randum went further. Where the submarine was able to ascertain that the 
merchant ship was armed, this was only the beginning of the inquiry. It 
must then "test by actual experience the purpose of an armament on an 
enemy merchant vessel." In other words, the submarine was to give the 
armed merchant ship the opportunity to attack first. If the merchant ship 
attacked and the submarine was not sunk, it would then be free to treat 
the merchant ship as a warship and counterattack. If the merchant ship 
did not use its armament to attack the submarine, the submarine could 
presumably proceed with visit and search to determine whether the mer- 
chant ship was subject to capture. It does not require extended analysis 
to conclude that the United States memorandum, if actually applied, 



enemy liners may not be destroyed on account of their armament unless such 
armament is proved. 
Id. at 181-82. 

77 The German note of May 4, 1916 concerning the Lusitania is quoted in part in 
the text of Ch. Ill accompanying notes 41, 42. 

78 [1916] Foreign Rel. U.S. Supp. 245, 246 (1929). 

79 See generally Buehrig 42-43, 86-87 and passim. 



112 

would have imposed a wholly unreasonable burden upon Germany and its 
submarine warships. In many situations the result of a submarine attempt- 
ing to obtain "direct evidence" would be the sinking of the submarine. 
In addition, the "direct evidence" was not necessary. The assumption, 
implicit in the memorandum, that each British merchant ship master 
decided ad hoc as to the employment of the armament was false. The 
purpose of the comprehensive instructions captured on the Wood field was 
to substitute British Government control for the discretion of the individual 
master or ship owner. 80 

Thereafter, as is well known, the United States went to war against 
Germany. The ostensible reason was alleged German violations of the law 
of naval warfare. President Wilson in his address to the Congress on April 
2, 1916 recommending a declaration of war stated, inter alia: 

The new [German] policy has swept every restriction aside. Vessels 
of every kind, whatever their flag, their character, their cargo, their 
destination, their errand, have been ruthlessly sent to the bottom with- 
out warning and without thought of help or mercy for those on board, 
the vessels of friendly neutrals along with those of belligerents .... 

... I am not now thinking of the loss of property involved, immense 
and serious as that is, but only of the wanton and wholesale destruc- 
tion of the lives of non-combatants, men, women, and children, 
engaged in pursuits which have always, even in the darkest periods 
of modern history, been deemed innocent and legitimate. Property 
can be paid for; the lives of peaceful and innocent people can not 
be. The present German submarine warfare against commerce is a 
warfare against mankind. 81 

One cannot help but sympathize with the "noncombatants" who through 
acts of more or less volition went to sea and became the victims of the 
naval war. In the same way one must sympathize with German civilians 
who, without volition, became the victims of the long-distance blockade. 
In explaining the basis for treating foodstuffs to Germany as contraband, 
the British Foreign Secretary stated in early 1915: 

The reason for drawing a distinction between foodstuff's intended 
for the civil population and those for the armed forces or enemy 
Government disappears when the distinction between the civil popula- 
tion and the armed forces itself disappears. 5 



82 



80 In addition to the Woodfield instructions quoted in the text accompanying supra 
note 73, see Hurd, The Merchant Navy (3 vols. 1921, 1924, 1929); Salter, Allied 
Shipping Control (1921); J. R. Smith, Influence of the Great War Upon Shipping 
153-84 (Carnegie Endowment for Int'l Peace, Preliminary Economic Studies of the 
War No. 9, 1919). 

81 [1917] Foreign Rel. U.S. Supp. No. 1, 195, 196 ( 1931). 

82 [1915] Foreign Rel. U.S. Supp. 324, 332 (1928). 



113 

As a belligerent the United States helped the United Kingdom to 
perfect the merchant ship as an effective combatant unit. The United 
States, like the United Kingdom, armed its merchant ships 83 and sailed 
them in convoys escorted by naval vessels. In addition, the United States 
exercised comprehensive government control over the voyages sailed and 
the cargoes carried by merchant shipping to insure that it was employed 
in the most efficient manner possible in behalf of the war effort. 84 

The outcome of the combat interactions between merchant ships and 
submarines in the First World War was that each treated the other as a 
lawful object of attack which could be sunk without warning. This recipro- 
cal situation was summarized in the report of the United States Advisory 
Committee at the Washington Conference on the Limitation of Armament 
which stated: 

The merchant ship sank the submarine if it came near enough ; the 
submarine sought and destroyed the merchant ship without even a 
knowledge of nationality or guilt. . . . Defensive [merchant ship] 
armament was almost sure to be used offensively in an attempt to strike 
a first blow. 85 

b. WORLD WAR II 

At the beginning of the Second World War the naval belligerents 
on both sides took up where matters had been left in 1918. For example, 
they acted without any regard to the Declaration of London. The contra- 
band lists published by the principal belligerents in September 1939 were 
even more comprehensive in scope than those employed in the latter part 
of the First World War. 86 The British Government put into effect all of 



83 The "Regulations Governing the Conduct of American Merchant Vessels on 
Which Armed Guards Have Been Placed" are set forth in 2 Savage, Policy of the 
United States Toward Maritime Commerce in War 582 (1936). 

84 J. R. Smith, op. cit. supra note 80 at 185-216; Salter, op. cit. supra note 80 
passim. See Wilson, U.S. Naval War College, International Law Situations 1930 
44-48 (1931). 

The decisions of the post- World War I United States-German Mixed Claims 
Commission are of little value concerning the status of United States merchant 
ships participating in the naval war effort. The decisions of the Commission were 
based upon the terms of the postwar settlement rather than upon accepted principles 
of international law. See Wilson, op. cit. supra at 48-50. 

8 Wash. Conf. 274. Prof. Higgins has written a very traditional defense of the 
legal rights and immunities of armed merchant ships which minimizes the facts 
quoted in the text: "Defensively Armed Merchant Ships" in Higgins, Studies in 
International Law and Relations Pt. I, 239; Pt. II, 265 (1928). 

"The British and German contraband lists of 1939 are set forth in 7 Hackworth 
24-26. The result was to change the conception of contraband from a compromise 
between neutral and belligerent interests to a consideration of the latter only. 

The Law of Naval Warfare art. 631(b) (footnote omitted) states: 

The precise nature of a belligerent's contraband list may vary according to the 

particular circumstances of the armed conflict. 



114 

the techniques of merchant ship warfare which it had learned so slowly 
and painfully during the First World War as well as some new ones. 87 
British merchant ships were armed 88 and were sailed in that most effective 
of offensive and defensive antisubmarine warfare methods: the convoy 
escorted by antisubmarine warships and aircraft. 89 All British merchant 
ships were subject to comprehensive direction and control by the British 
Government. 90 Captain Roskill has summarized the pattern of government 
control over merchant shipping : 

On 26th August 1939 there was issued in Whitehall an order which 
established the pattern under which the whole of the British Merchant 
Navy was to work for the next six years. It stated that the Cabinet 
Committee responsible for 'Defence Preparedness' had, in consultation 
with the Foreign Office and the Board of Trade, authorised the 
Admiralty 'to adopt compulsory control of movements of merchant 
shipping. . . .' Parallel with this assumption of operational control by 
the Admiralty, other government directives transferred the responsi- 
bility for the loading and unloading of all merchant ships from their 
owners to the Ministry of Shipping. 91 

It is significant that the strategic control of British merchant ships, like 
that of warships, was vested directly in the Admiralty. 92 British instructions 
concerning the tactical employment of armed merchant ships, which had 
been prepared before the war, were put into effect. One portion of the 
Defense of Merchant Shipping Handbook (1938) concerned "reporting 
the enemy" and provided that it is the merchant ship master's 

first and most important duty to report the nature and position of the 
enemy by wireless telegraphy. Such a report promptly made may be 
the means of saving not only the ship herself but many others; for 
it may give an opportunity for the destruction of her assailant by our 
warships or aircraft, an opportunity which might not recur. 93 



87 See generally Roskill 35-36, 117-19. Merchant ships with a catapult-mounted 
aircraft are described in id. at 118. Apparently this was a temporary measure until 
sufficient escort aircraft carriers were available. 

88 The arming is described in id. at 46-47. 

89 Captain Roskill has described the offensive tactical characteristics of convoy as 
a method of antisubmarine warfare in "Capros not Convoy: Counter-Attack and 
Destroy!" 82 Nav. Inst. Proc. 1047 (1956). CAPROS=Counter Attack Protection 
and Routing of Shipping. 

90 See generally United Kingdom Ministry of Information, Merchantmen at War: 
The Official Story of the Merchant Navy 1939-1944 (undated; circa 1945). 

91 Roskill, A Merchant Fleet in War: Alfred Holt & Co. 1939-1945 19-20 (1962). 
93 This control was under the direction of "the Trade Division" which was "one 

of the largest organisations within the Naval Staff under its own Assistant Chief of 
Naval Staff." 1 Roskill, The War at Sea 1939-1945: The Defensive 21 (1954). 
93 40 I.M.T. 88. 



115 

On the important subject, "conditions under which fire may be opened," 
the Handbook stated that if the enemy adopts a policy of sinking merchant 
ships without warning 

it will then be permissible to open fire on an enemy surface vessel, 
submarine or aircraft, even before she has attacked or demanded 
surrender, if to do so will tend to prevent her gaining a favourable 
position for attacking. 94 
Subsequent instructions stated that the enemy had adopted such a policy 
of sinking without warning. 95 

At the beginning of the war the German Navy used the Protocol of 
1936 as the basis for the conduct of submarine warfare. The Protocol 
was incorporated almost verbatim into article 74 of the German Prize 
Code of 1939. 96 Thereafter, changes were introduced by degrees until "an 
order was issued on 17 October 1939 to attack all enemy merchant ships 
without warning." 97 Thus, quite early in the Second World War merchant 
ships and submarines of the opposing belligerents were attacking one an- 
other without warning. The judgment of the International Military Tribu- 
nal in the case of Admiral Donitz summarizes the steps involved in the 
progressive utilization of German submarines : 

Donitz insists that at all times the Navy remained within the confines 
of international law and of the Protocol. He testified that when the 
war began, the guide to submarine warfare was the German Prize 
Ordinance taken almost literally from the Protocol, that pursuant to 
the German view, he ordered submarines to attack all merchant ships 
in convoy, and all that refused to stop or used their radio upon sight- 
ing a submarine. When his reports indicated that British merchant 
ships were being used to give information by wireless, were being 
armed, and were attacking submarines on sight, he ordered his sub- 
marines on 17 October 1939 to attack all enemy merchant ships with- 
out warning on the ground that resistance was to be expected. Orders 
already had been issued on 21 September 1939 to attack all ships, 



94 Id. at 89. 

95 Id. at 90. 

06 

1)7 



Art. 74 appears in 7 Hackworth 248. 

The words are Kranzbuhler's in his final argument to the Tribunal in behalf of 
Admiral Donitz. 18 I.M.T. 312, 323. See Captain Roskill's statement of the events 
summarized in the text in Roskill, op. cit. supra note 92 at 103, 104. A German 
perspective appears in Ruge, Der Seekrieg: The German Navy's Story 1939-1945 
63, 65 (1957). 

German official documents concerning the intensification of submarine warfare 
early in the war appear in 8 U.S. Dept. of State, Documents on German Foreign 
Policy 1918-1945, Series D: The War Years, September 4, 1939-March 18, 1940 
319-20, 417-18 (1954). 

Admiral Donitz' views on this subject appear in U.S. Office of Naval Intelligence, 
The Conduct of the War at Sea: an Essay by Admiral Karl Doenitz 4 (1946). 



116 

including neutrals, sailing at night without lights in the English 
Channel. 98 

Admiral Donitz was charged generally with "waging unrestricted sub- 
marine warfare contrary to the Naval Protocol of 1936." " The aspects 
of the case concerning submarine operational areas have been appraised 
previously. 100 The charges concerning objects and methods of attack re- 
lated to the sinking of merchant ships and the treatment of survivors of 
sunken ships. 

In his argument on behalf of Admiral Donitz, Flottenrichter Kranzbuhler 
referred to the "great struggle which took place between the U-boats on 
the one hand, and the armed merchant vessels equipped with guns and 
depth charges on the other hand, as equal military opponents." 101 He 
contended that: 

According to German legal opinion a ship which is equipped and 
utilized for battle does not come under the provisions granting protec- 
tion against sinking without warning as laid down by the London 
Protocol for merchant ships. I wish to stress the fact that the right of 
the merchant ship to carry weapons and to fight is not thereby con- 
tested. The conclusion drawn from this fact is reflected in the 
well-known formula: "He who resorts to weapons must expect to be 
answered by weapons." 102 

His argument, it should be mentioned, accurately reflects the close 
relationship between lawful combatants and lawful objects of attack. The 
prosecution merely responded that it was "untenable" to regard the sinking 
of Allied merchant ships without warning as legally justified by the Allied 
merchant ship tactics. 103 The Tribunal dealt with British armed merchant 
ships in the following passage : 

Shortly after the outbreak of war the British Admiralty, in accord- 
ance with its Handbook of Instructions of 1938 to the Merchant Navy, 
armed its merchant vessels, in many cases convoyed them with armed 
escort, gave orders to send position reports upon sighting submarines, 
thus integrating merchant vessels into the warning network of naval 
intelligence. On 1 October 1939 the British Admiralty announced 
that British merchant ships had been ordered to ram U-boats if pos- 
sible. 
In the actual circumstances of this case, the Tribunal is not prepared 



1 I.M.T. 311-12. 
"Id. at 311. 
100 See the text of Ch. Ill accompanying notes 112-31. 



101 18 I.M.T. 315 

102 Ibid. 

103 19 I.M.T. 487 



117 

to hold Donitz guilty for his conduct of submarine warfare against 
British armed merchant ships. 104 

According to its terms this holding applied to "British armed merchant 
ships." It is a wise holding in the light of the full participation of these 
merchant ships in combat. 105 Writing in 1940 Professor Borchard recalled 
that the historic immunity of merchant ships had been based upon their 
military weakness in relation to warships and stated: 

[W]hen merchant ships became speedy, powerful and armed and the 
vulnerable submarine appeared on the scene, the reason for immunity 
from unwarned attack disappeared. It is elementary that an armed 
belligerent merchant ship, especially when under orders to attack 
submarines at sight, is a fighting ship, subject to all the dangers of 
the belligerent character. . . , 106 

The Tribunal made no specific holding concerning British unarmed 
merchant ships. It is possible that the broad term "armed merchant ships" 
may have been used to apply to all British merchant ships actually partici- 
pating in the British naval war effort, such as sailing in convoy or sending 
submarine position reports, without regard to whether a particular ship 
was armed. It is important for the purpose of accurate legal analysis to 
determine whether only armed merchant ships or any merchant ships 
participating in the naval war effort may be sunk without warning. An 
analysis of the Protocol is essential in this inquiry. 

The Protocol has been set forth in Chapter III in connection with 
submarine operational areas. 107 Its first paragraph provides that in their 
action with regard to "merchant ships" submarines must obey the same 
international law rules which are applicable to surface vessels. Its second 
paragraph enunciates a general rule concerning methods of attack to be 
employed against "a merchant vessel" by both submarine and surface 



104 1 LM.T. 312. 

105 Prof. Lauterpacht has manifested some ambivalence concerning this subject : 
In so far as the Tribunal attached decisive importance to the circumstance that 
merchant vessels were armed for defensive purposes or engaged in activities and 
received assistance of essentially defensive character, its judgment is not likely to 
command general assent. 

Oppenheim-Lauterpacht 492. 

Compare his views expressed in the text accompanying notes 228, 229 infra. 

106 Borchard, "Armed Merchantmen," 34 A.J.I.L. 107, 110 (1940). 

107 See the text of Gh. Ill accompanying note 114. The Protocol is set forth there 
except for its 'preamble which states : "The following are accepted as established 
rules of International Law." This appears to suggest that the parties merely declared 
in treaty form that which had been previously agreed to as customary law. The Root 
Resolutions embodied in the unratified Submarine Treaty (1922) stated that certain 
other rules were a "part of international law." See the text of Ch. II accompanying 
note 85. It is unlikely that these inconsistent rules could all be part of the pre- 
existing law. 



118 

warships. This general rule is that the warship "may not sink or render 
incapable of navigation" a merchant ship without first placing "passengers, 
crew, and ship's papers in a place of safety." It is further specified that 
the ship's boats may not be regarded as a place of safety unless, taking 
account of weather conditions, the proximity of land or the presence of a 
potential rescue vessel makes them safe. The general rule enunciated is 
subjected to these two exceptions in which, it should be noticed, the adjec- 
tives "persistent" and "active" are used: 108 (1) "persistent refusal to stop 
on being duly summoned"; (2) "active resistance to visit and search." 
The black letter statement in the Harvard Research, Draft Convention 
on the Law of Treaties enunciates well-established criteria to be used in 
treaty interpretation. It provides: 

A treaty is to be interpreted in the light of the general purpose 
which it is intended to serve. The historical background of the treaty, 
travaux preparatories, the circumstances of the parties at the time the 
treaty was entered into, the change in these circumstances sought to 
be effected, the subsequent conduct of the parties in applying the 
provisions of the treaty, and the conditions prevailing at the time 
interpretation is being made, are to be considered in connection 
with the general purpose which the treaty is intended to serve. 109 
The multif actor approach set forth is designed, inter alia, to avoid the 
oversimplistic "plain meaning" approach to treaty interpretation. It should 
require no extended analysis here to indicate the intellectual inadequacy 
of the "plain meaning" device in dealing with a serious interpretative 
problem. 110 In the words of the late Judge Anzilotti of the International 
Court : 

But I do not see how it is possible to say that an article of a conven- 
tion is clear until the subject and aim of the convention have been 
ascertained, for the article only assumes its true import in this con- 
vention and in relation thereto. 111 

The most general purpose of article 22 of the London Naval Treaty 
of 1930 and of the Protocol of 1936, which embodies the same rules, 112 
was to provide some regulation of submarine warships in view of the non- 
ratification of Senator Root's resolutions which were set forth in the ill— 



108 These adjectives did not usually appear in the similar formulations in the 
traditional law. 

109 Harvard Research, Treaties 937. 

110 Compare the impressionistic "plain meaning" interpretation of art. 51 of the 
United Nations Charter in Henkin, "Force, Intervention, and Neutrality in Con- 
temporary International Law," 57 Proc. A.S.I.L. 146 (1963) with the careful 
analysis employing the legislative history of art. 51 in McDougal & Feliciano 232-41. 

111 Interpretation of the Convention of 1919 Concerning Employment of Women 
During the Night, [1932] P.C.I.J., ser. A/B, No. 50, dissenting opinion at 383. 

ua The relation between Treaty and Protocol is described in Ch. Ill, note 114. 



119 

fated Submarine Treaty of 1922. 113 It may be suggested, in consequence, 
that the regulation of submarines contemplated was not to be so stringent 
as to preclude ratification. The United States, the United Kingdom, 
Japan, France, and Italy were the parties to the London Naval Treaty of 
1930. Perhaps the clearest feature of their "subsequent conduct" in "apply- 
ing the provisions of the treaty" in World War II is that they did not re- 
gard its protection as being extended to merchant ships, whether armed or 
not, which participated in the conduct of the naval war. It is reasonable 
to expect that this unanimous working interpretation of all five of the 
parties to the Treaty would have been entitled to the greatest deference by 
the International Military Tribunal if it had considered specifically the 
status of unarmed belligerent merchant ships participating in the naval 
war effort. In addition, Germany, which adhered to the Protocol, employed 
the same interpretation during the war. 

As to "the conditions prevailing at the time interpretation is being 
made," the Tribunal should have been aware that the Protocol had not 
actually precluded the effective use of the submarine against merchant 
ships participating in the war or hostilities either in the Atlantic or in the 
Pacific. There is no reason to believe that the prohibition of the effective 
use of submarines against such merchant ships was part of the general 
purpose of the Treaty and the Protocol. If it had been, it is most probable 
that France would not have adhered to the Treaty 114 and that Germany 
would not have adhered to the same provisions subsequently embodied in 
the Protocol. 

The first paragraph of the Treaty, by requiring submarines to comply 
with the rules applicable to surface warships, does compel the submarine 
to come to the surface and lose its capability of surprise attack. From a 
naval tactical viewpoint such a requirement is reasonable provided only 
that the "merchant ship" involved is not participating in the war or hos- 
tilites. It has been stated concerning the Treaty that "merchant ships" in 
the first paragraph and "a merchant vessel" in the second paragraph are 
highly ambiguous terms. 115 Much of the ambiguity is resolved by the "Re- 
port of the Committee of Jurists" (April 3, 1930) concerning the wording 
of article 22 of the London Naval Treaty of 1930. This report, prepared 
by the lawyers who drafted the Treaty, states in relevant part: 

The Committee wish to place it on record that the expression "mer- 



113 See the text of Ch. II accompanying notes 85-87. 
4 The role of France as a supporter of efficient use of submarines has been 
described in Ch. II passim. 

115 Admiral Rickover has criticized the unratified Washington Submarine Treaty 
and the London Naval Treaty for not considering the problem of the armed mer- 
chantman. Rickover, "International Law and the Submarine," 61 Nav. Inst. Proc. 
1213, 1221 (1935). It is probable that the armed merchantman as an effective com- 
batant unit was considered and left outside the scope of the London Treaty. 



120 

chant vessel," where it is employed in the declaration, is not to be 
understood as including a merchant vessel which is at the moment 
participating in hostilities in such a manner as to cause her to lose 
her right to the immunities of a merchant vessel. 116 

The stated criteria is considerably more realistic than a test which 
attempts to distinguish only between armed and unarmed merchant ves- 
sels. The criteria should certainly include, inter alia, any armed merchant 
vessel and no consideration should be given to the purported distinction 
between "defensive" and "offensive" armament. It should not, however, 
be limited to armed vessels because there are many modes of unarmed 
participation in hostilities. For example, a fast unarmed passenger liner 
employed as a troop transport during war or hostilities should not be 
entitled to "the immunities of a merchant vessel." 117 During the Second 
World War the Queen Mary and Queen Elizabeth were so employed in 
behalf of the Allied war effort. 118 It is clear that they represented a very 
substantial addition of military power to the Allied side. Such a vessel, 
though unarmed, is a far more effective participant in the hostilites than 
many slower and smaller armed vessels. In addition, if the fast liner en- 
gaged in carrying troops were to sail at a much slower speed and be escort- 
ed by a small warship, it would be subject to attack without warning. 

Reference has been made to the military significance of an enemy mer- 
cant ship making radio reports of submarine sightings. 119 In particular 
combat contexts it is probably far more important for the efficient conduct 
of antisubmarine warfare to have radio reports made by merchant ships 
than to have such ships armed. 

In summary, the juridical criteria to determine whether or not a mer- 
chant vessel is participating in the war or hostilities in a way which results 
in losing "the immunities of a merchant vessel" should be determined 
by the fact of such participation and not by the particular method of 
participation. In a general war in which almost all belligerent merchant 
ships are so participating, it may, as a practical matter of tactics, be neces- 
sary for belligerent submarines to treat all enemy merchant ships as lawful 
objects of attack without warning. In unusual circumstances, perhaps in- 
volving a solitary merchantman far from the regular trade routes, 120 
where it is possible for submarines to determine the nonparticipant status 
of a particular ship, it is clear that they are legally obligated to do so. 

The consequence of the foregoing appraisal, that the Protocol is designed 
to protect only those merchant ships which are not participating in the 



116 London Conf. 189. 

117 See Prof. Hyde's different conclusion in a related situation. Hyde 1991. 
118 Roskill 43, 243, 357. 

119 See the text accompanying supra note 93. 

120 See McDougal & Feliciano 631. See also the text accompanying note 242 infra. 



121 

war or hostilities, is the conclusion that there was not consistent violation 
of the Protocol by any of the major naval belligerents during the Second 
World War. 

Professor Tucker has reached different conclusions concerning this sub- 
ject. He has written concerning the Protocol in the Atlantic war: 

Despite this reaffirmation of the traditional law in the 1936 London 
Protocol, the record of belligerent measures with respect to enemy 
merchant vessels during World War II fell far below the standards 
set in the preceding conflict. In the Atlantic Germany resorted to 
unrestricted submarine and aerial warfare against British merchant 
vessels almost from the very start of hostilities. . . , 121 

... In the final stages of the conflict the measures taken by Great 
Britain against enemy shipping wherever encountered were only barely 
distinguishable from a policy of unrestricted warfare. 122 
Concerning the role of the Protocol in the Pacific war, Professor Tucker 
has written: 

In the Pacific no attempt was made by either of the major naval 
belligerents to observe the obligations laid down by the 1936 London 
Protocol. Immediately upon the outbreak of war the United States 
initiated a policy of unrestricted aerial and submarine warfare against 
Japanese merchant vessels, and consistently pursued this policy 
throughout the course of hostilities. Japan, in turn, furnished no evi- 
dence of a willingness to abide by the provisions of the Protocol. . . , 123 
Professor Tucker has apparently assumed that the Protocol is designed 
to protect merchant vessels which are participating in the naval war 
effort. This does not take adequate account of the close relationship 
between the performance of combatant functions and the ensuing liability 
to attack without warning. In addition, it is inconsistent with the legisla- 
tive history concerning the interpretaton of "merchant vessel" as used in 
the Protocol. 124 

The comprehensive participation of Allied merchant ships in the 
Atlantic war has been described. There is no reason to believe that Allied 
merchant ships were employed differently in the Pacific war. 125 As to 



m Tucker 64. 

122 Id. at 66. 

123 Ibid. 

124 See the text accompanying supra note 116. 

Prof. Tucker offers the comforting suggestion that the traditional law remains 
valid "under the condition that belligerents refrain from incorporating merchant 
vessels in any way into their military effort at sea. . . ." Tucker 69, n. 53. Unless 
maintaining the traditional law is an end in itself, it is more useful to apply the law 
as developed to the actual facts concerning the use of merchant ships in two World 
Wars. 

125 See generally Reisenberg, Sea War: The Story of the U.S. Merchant Marine in 
World War II (1956). 



122 

Japanese merchant ships in the Pacific war, a U.S. Navy press release in 
1946 stated in part: 

[T]he conditions under which Japan employed her so-called mer- 
chant shipping was [sic~\ such that it would be impossible to dis- 
tinguish between "merchant ships" and Japanese Army and Navy 
auxiliaries. . . . 126 

c. THE LAW OF NAVAL WARFARE 

The U.S. Navy official instructions concerning objects of attack 
should be examined. Article 503(b) (3) of the Law of Naval Warfare 127 
provides : 

Enemy merchant vessels may be attacked and destroyed, either with 
or without prior warning, in any of the following circumstances: 

1. Actively resisting visit and search or capture. 

2. Refusing to stop upon being duly summoned. 

3. Sailing under convoy of enemy warships or enemy military aircraft. 

4. If armed, and there is reason to believe that such armament has 
been used, or is intended for use, offensively against an enemy. 

5. If incorporated into, or assisting in any way, the intelligence system 
of an enemy's armed forces. 

6. If acting in any capacity as a naval or military auxiliary to an 
enemy's armed forces. 

The first paragraph is consistent with the second exception to the gen- 
eral rule set forth in the Protocol. 128 Paragraph (2) would be consistent 
with the first exception to the general rule in the Protocol if it stressed 
the persistent character of the refusal to stop. 129 As stated previously, the 
adjectives "persistent" and "active" in the second paragraph of the Pro- 
tocol must be given full effect since they, or equivalent expressions, were 
not usually employed in the traditional law. Paragraph (3) accurately 
reflects the traditional law as well as the uniform practice of the two World 
Wars. Unfortunately, paragraph (4) appears to reflect the confused claims 
and counterclaims advanced during the First World War concerning the 
purported distinction between offensive and defensive armament. The 
attempt to employ this supposed criterion now, and in the foreseeable 
future, is even more futile than the attempt to use it between 1914 and 
1918. The traditional, law as it was developed during the two World Wars 
is adequately reflected in paragraph (5). Its comprehensive formulation 



128 Press release entitled, "United States Submarine Contributions to Victory in the 
Pacific" 14 (Feb. 1, 1946). 

127 The title of art. 503(b) (3) is "Destruction of Enemy Merchant Vessels Prior to 
Capture." Perhaps the phrase "without the necessity of capture" should have been 
substituted for the last three words. 

128 See the text accompanying note 108 supra. 
12S Ibid. 



123 

is particularly appropriate in view of the military importance in antisub- 
marine warfare of submarine position reports made by merchant ships. 

Paragraphs (3) through (6) appear to refer to typical situations in 
which enemy merchant vessels have been employed in general war. For 
example, the fast troop transports come under paragraph (6). 130 But this 
paragraph, in spite of its broad formulation, probably does not reflect fully 
the law developed during the World Wars. Unless the paragraph is con- 
strued more broadly than the term "naval or military auxiliary to an 
enemy's armed forces" has usually been construed, it might well be possi- 
ble to have an enemy merchant ship designed for carrying cargo and 
actually engaged in carrying a cargo of substantial military importance 
to the enemy which does not come under paragraphs ( 1 ) through ( 5 ) 
and which would not be included under (6). The result of this type of 
ship not coming under any provision of article 503(b) (3) would be that 
it could not be attacked without warning and could only be captured. 
The ship and its cargo would then pass unharmed by United States sub- 
marines unless, in some highly unusual situation, a United States sub- 
marine should be carrying a prize crew and be able to comply with the 
traditional method of capture. 131 

The provisions of this article are accurate as far as they go but are 
inadequate in covering this one particular situation. During the past 
general wars enemy cargo ships were attacked without warning even if 
they did not participate otherwise in the enemy war effort. 132 They were 
attacked without warning because they were cargo vessels carrying cargoes 
of military importance. There is, unfortunately, no reason to believe that 
such cargo ships which comply rigorously with the requirements of article 
503(b) (3) will be immune from attack without warning in future general 
wars. This article, however, could provide specific grounds for claims and 
counterclaims based upon charges of illegality. If this occurs, the next 
steps could involve the invocation of reprisals and counterreprisals so that 
a future general war could be conducted, thereafter, without regard to 
this article of the Law of Naval Warfare. 

3. Immune Enemy Ships 

It is clear that the military necessity principle is honored in the 
doctrines relating to enemy warships and enemy merchant ships as objects 
of attack. The doctrines concerning the immunity of certain enemy 
ships reflect 'the attempt to provide implementation of the humanity prin- 
ciple. Although these ships enjoy immunity from attack by all naval forces, 



130 See the text accompanying note 1 18 supra. 

131 It is more likely that a large surface warship would be able to effect capture. 
133 See the German reference to "enemy freight ships" in the text of Ch. Ill 

accompanying note 42. 



124 

it is appropriate to consider this subject briefly in a study of the law 
applicable to submarine warships. 

a. HOSPITAL SHIPS 

Hospital ships comprise the most important category of immune 
ships. Under the Geneva Sea Convention of 1949 133 they must be painted 
white with dark red crosses as distinguishing marks which are designed 
to facilitate recognition by both surface vessels and aircraft. 134 

Hague Convention X (1907) 135 was based upon the assumption that 
hospital ships accompanied battle fleets and waited nearby during the 
battle. When the battle was over they speedily provided assistance to the 
wounded, shipwrecked, and drowning. In World War II hospital ships 
performed other functions and did not usually accompany the combatant 
naval forces. It is clear that the mere presence of a hospital ship in white 
paint in the daytime and additionally lighted at night might inform the 
enemy of important naval activities. Even a solitary hospital ship sailing 
into a militarily important harbor or base in or near the battle zone would 
serve to call the enemy's attention to it. The usual practice in World War 
II, consequently, was to transport the wounded while in the battle zone 
on armed naval vessels, including transports which had discharged their 
troops. After arrival at rear areas the wounded were transferred to the 
hospital ships which were protected by Hague Convention X. 136 

This change in the function of hospital ships is taken into account in 
the Geneva Sea Convention. 137 The principal type of hospital ship recog- 
nized by it is the military hospital ship which is built or equipped "spe- 
cially and wholly with a view to assisting the wounded, sick and ship- 
wrecked, to treating them and to transporting them." 138 The Convention 
provides that these ships "may in no circumstances be attacked or captured 
but shall at all times be respected and protected." 139 The same standards 
of protection are extended to private hospital ships such as those utilized 



133 Citation appears in Ch. I note 66. 

134 Art. 43. 



135 Entitled : Convention for the Adaptation to Maritime War of the Principles of 
the Geneva Convention. Text in 2 Scott 447. The predecessor of the foregoing 1907 
Convention was the Convention for the Adaptation to Maritime Warfare of the 
Principles of the Geneva Convention of August 22, 1864 (Hague Peace Conference 
of 1899). Text in 2 Scott 142. 

13a Mossop, "Hospital Ships in the Second World War," 24 Brit. Y.B.I.L. 398, 399 
(1947). 

137 Pictet, Commentary: Geneva Convention for the Amelioration of the Condition 
of the Wounded, Sick and Shipwrecked Members of Armed Forces at Sea (Inter- 
national Committee of the Red Cross, 1960) provides useful analysis and legislative 
history. 

138 Art. 22. 

139 Ibid. 



125 

by National Red Gross Societies of states which are parties to the conflict 
or of neutral states. 140 Aid must be rendered without distinction as to the 
nationality of the wounded, sick, and shipwrecked. 141 

It is not surprising that the Geneva Sea Convention provides for the 
protection of the military interests of the belligerents. If it did not, it 
would probably be impossible to attain its central humanitarian objectives. 
All warships of a belligerent party to the Convention may demand the 
surrender and removal from hospital ships of the wounded, sick, and ship- 
wrecked in order to make them prisoners of war and to prevent the enemy 
belligerents from employing them subsequently for military purposes. 142 
This authority is conditioned upon the wounded and sick being in a fit 
state to be moved and the warship having adequate medical facilities. 143 
Because of their inadequate passenger carrying facilities, submarines could 
not provide the requisite adequate medical facilities except in unusual 
circumstances. 

During 1944 and 1945 an example arose concerning capture of the 
wounded under Hague Convention X. 144 The Allies allowed Germany to 
send the hospital ships Tubingen and Gradisca through Allied-controlled 
waters to embark sick and wounded troops in Salonica. On the return 
voyage the ships were diverted to Allied ports and about 4,000 prisoners 
were taken. A large percentage of the prisoners thus captured were only 
slightly wounded. The action was specifically authorized by Hague Con- 
vention X 145 and no protest was made by Germany. 

In summary, the Geneva Sea Convention gives belligerents a right to 
control and search hospital ships in order to insure their use for humani- 
tarian purposes only. In broad language, it prohibits the use of hospital 
ships "for any military purpose" 146 or for any acts "harmful to the 
enemy." 147 They may not possess or use secret communications codes. 148 
The Convention provides that: 

They [the parties to the conflict] can refuse assistance from these 
vessels, order them off, make them take a certain course, control the 
use of their wireless and other means of communication, and even 
detain them for a period not exceeding seven days from the time of 
interception, if the gravity of the circumstances so requires. 149 



140 Arts. 24, 25. 

141 Art. 30. 

142 Art. 14. 

143 Ibid. 

144 The textual paragraph is based upon Mossop, op. cit. supra note 136 at 405. 

145 Art. 12. 

146 Art. 30. 

147 Art. 34. 

148 Art. 34, paragraph 2. 

149 Art. 31. 



126 

b. CARTEL AND SIMILAR SHIPS 

Historically, the term cartel referred to an agreement between 
enemy belligerents to regulate the exchange of prisoners of war. 150 In the 
same way, cartel ships referred to vessels which were designated for use 
in such an exchange. 151 In a broader sense, the term cartel is now used to 
refer to other kinds of nonhostile relations regulated by special agreement 
between enemy belligerents. 152 

An illustration of such an arrangement and the difficulties involved in 
carrying it out arose in the later part of the Second World War. In 1945 
the Japanese merchant ship Aw a Maru undertook a voyage agreed upon 
between the United States and Japanese Governments whereby it was to 
carry relief supplies furnished by the United States to United States and 
Allied nationals held in Japanese custody upon the Asian mainland. 153 
The vessel had been granted a safe conduct by the United States and the 
other Allied powers. It had completed its outward voyage from Japan to 
Hong Kong, Singapore and other ports carrying the relief supplies. On 
its homeward-bound voyage it was entitled, according to the agreement, 
to the full measure of immunity while following the prescribed route. On 
April 1, 1945 the Awa Maru was torpedoed without warning by the United 
States submarine Que en fish. At the time of the sinking the ship had 
deviated slightly from its prescribed route but, after an investigation, the 
United States assumed full responsibility for the sinking. The commanding 
officer of the Queenfish was apparently unaware that the ship attacked 
had been granted safe conduct by the Allies. He was relieved of his com- 
mand and convicted by general court-martial for, inter alia, negligence in 
carrying out orders. During the course of the ensuing diplomatic inter- 
change, the United States offered to provide Japan with a vessel of similar 
size and characteristics to replace the Awa Maru. 

c. COASTAL FISHING BOATS 

The case of The Paquete Habana has been referred to as an 
example of customary law which is applicable in naval warfare. 154 In this 
case the United States Supreme Court held that small coastal fishing boats 
operating out of Havana during the Spanish-American War were not 
liable to capture and condemnation in prize. In justifying the decision, 
Mr. Justice Gray referred to the "considerations of humanity [due] to a 



150 Oppenheim-Lauterpacht 542. 

151 Ibid. 

152 Tucker 98. 

153 The textual account is based upon "Sinking of the 'Awa Maru','' U.S. Naval 
War College, International Law Documents 1944-45 125 (1946) ; Voge, "Too Much 
Accuracy," 76 Nav. Inst. Proc. 257 (1950). 

154 See the text of Ch. I accompanying notes 73, 74. 



127 

poor and industrious order of men. . . ." 155 He also explained : 

The exemption, of course, does not apply to coast fishermen or 
their vessels, if employed for a warlike purpose, or in such a way as 
to give aid or information to the enemy; nor when military or naval 
operations create a necessity to which all private interests must give 
way. 156 

A few years later the customary law reflected in The Paquete Habana 
decision was set forth in treaty form in Hague Convention XI (1907). 
The exemption was expanded beyond coastal fishing boats to include 
also "small boats in local trade." 157 These limitations were stated to apply 
to both exempt categories: 

They cease to be exempt as soon as they take any part whatever in 
hostilities. 

The contracting powers bind themselves not to take advantage of 
the harmless character of the said vessels in order to use them for 
military purposes while preserving their peaceful appearance. 158 
It is difficult to avoid the conclusion that even coastal fishing and trade 
contribute to some extent to the enemy war effort. Apparently this was 
the situation during the Korean War even though it is regarded as a limited 
war. During that war a traditional close-in naval blockade was in effect 159 
and the United Nations Command prohibited coastal as well as deep-sea 
fishing by the North Koreans. 160 Among the reasons justifying the prohibi- 
tion were the following: 

Rear Admiral Smith took the attitude that this sea food was legiti- 
mate contraband and should be stringently denied [to] the Commu- 
nists. The restriction of fishing by the UN blockading force would 
seriously add to the Communist's logistics problems ashore, and force 
them to import fish from Chinese and Russian sources. 161 
The result was that the great importance of fish in the North Korean 
diet made fishing a matter of military importance which outweighed the 
considerations of humanity referred to by Mr. Justice Gray. In addition, 
it was pointed out that a great many of the supposed North Korean fish- 
ing boats were actually engaged in laying mines. 162 Such boats would not, 
of course, be exempt under the holding in The Paquete Habana or in the 
conventional formulation of fishing boat immunity in Hague Convention 
XI. There is no reason to believe that boats performing functions similar 



155 175 U.S. 677, 708 (1900). 
166 Ibid. 
157 Art. 3. 
58 Ibid. The text of the Convention appears in 2 Scott 463. 

Gagle & Manson 281 84 and passim. 
™Id. at 297. 

161 Id. at 296. 

162 Ibid. 



159 



128 

to those of the North Korean fishing and mining boats would be accorded 
immunity in a general war. 

d. OTHER IMMUNE VESSELS 

Hague Convention XI (1907) prescribes a general immunity from 
capture for "vessels charged with religious, scientific, or philanthropic 
missions." 163 As a practical matter, this provision has not been often in- 
voked in the World Wars and, when it has been invoked, narrow interpre- 
tations have been applied to it. 164 Philanthropic missions have been carried 
out pursuant to special cartel arrangements entered into by the enemy 
belligerents rather than under the convention. 

The assumption in Hague Convention XI that scientific missions are 
devoid of military significance is contrary to contemporary expectations 
concerning the use of scientific knowledge. The immunity granted to ves- 
sels on scientific missions was based upon the assumption that scientific 
inquiry has only a peaceful importance. In many fields scientific knowledge 
is as readily adaptable for military as for peaceful purposes. 165 At the 
present time, for example, there is inadequate charting of ocean floor 
depths and contours. As nuclear submarines are enabled to submerge to 
greater depths this type of oceanographic information will be of military 
as well as of peaceful significance. 

Further problems will arise in the near future when there will be re- 
search submarines and submersibles which are not warships operating in 
the oceans of the world. 166 Many of these research vessels will be highly 
specialized and not suitable for use as warships, and cannot be treated as 
such. The Geneva Convention on the Territorial Sea and the Contiguous 
Zone (1958) provides that, while engaged in innocent passage through 
territorial waters, "submarines are required to navigate on the surface and 
to show their flag." 167 It is possible that a submersible research ship, per- 
haps due to an error in navigation or because of the view that it is immune 
as a result of its scientific character, may fail to comply with this rule. 168 
In order to ascertain the character of the submarine or submersible and 



163 Art. 4. 

184 See the cases summarized in 6 Hackworth 544—46. 

165 See generally Craven, "Sea Power and the Sea Bed," 92 Nav. Inst. Proc. No. 4, 
p. 36 (1966). 

168 The First Report of the President to the Congress on Marine Resources and 
Engineering Development, Marine Science Affairs — A Year of Transition 92-94 
(1967). 

167 Art. 14(b). The text of the Convention appears in McDougal & Burke, The 
Public Order of the Oceans: A Contemporary International Law of the Sea 1143—52 
(1962). 

168 It is widely assumed that the four Geneva Conventions on the Law of the Sea 
(1958) deal only with the law of the sea in time of peace but this is not stated 
expressly in the Conventions. 



129 

the possible military aspects of its mission, it may be lawfully ordered to 
the surface. 

An illustration of communications with submerged submarines was 
provided by Special Warning No. 32 issued by the U.S. Navy Oceano- 
graphic Office during the quarantine-interdiction of Soviet missiles to Cuba 
in 1962. It concerned submarine surfacing and identification procedures 
when in contact with "Quarantine Forces in the general vicinity of Cuba" 
and provided in part: 

U.S. Forces coming in contact with unidentified submerged sub- 
marines will make the following signals to inform the sub that he may 
surface in order to identify himself: Signals follow — Quarantine 
forces will drop 4 to 5 harmless explosive sound signals which may be 
accompanied by the International Code signal "IDKCA" meaning 
"Rise to Surface." This sonar signal is normally made on underwater 
communications equipment in the 8 kc. frequency range. Procedure 
on receipt of signal: Submerged submarines, on hearing this signal, 
should surface on easterly course. Signals and procedures employed 
are harmless. 169 
It must be recognized that research submarines and submersibles may 
not have communication facilities comparable to those of submarine war- 
ships. 

4. Capture or Destruction of Neutral Merchant Ships 

Historically, neutral merchant ships have not been claimed as objects 
of direct military attack to as great a degree as have enemy merchant ves- 
sels. It is clear that this situation was drastically changed during the World 
Wars. The use of mines against enemy merchant vessels, for example, 
amounted to a claim to attack neutral merchant vessels as well since 
mines do not discriminate between belligerents and neutrals. 170 

a. NEUTRALS WHICH ARE INTEGRATED INTO THE 
ENEMY WAR EFFORT 

It seems clear on the basis of moral and legal principles as well as 
upon the customary law developed in both World Wars, that neutral mer- 
chant vessels which are integrated into the enemy war effort may be law- 
fully accorded the same treatment as enemy merchant vessels which are 
so integrated. It has been demonstrated that the Protocol does not protect 
enemy merchant ships which are participating in the war or hostilities. 



189 Paragraph No. 5982 in Notice to Mariners No. 45 (1962). For indication of 
the factual context in which the communications were employed see Mallison, 
"Limited Naval Blockade or Quarantine-Interdiction: National and Collective De- 
fense Claims Valid Under International Law," 31 Geo. Wash. L. Rev. 335, 390-92 
(1962). 

170 The effectiveness of modern types of sea mines is described in Roskill 47-48. 



130 

There is no reason in either experience or logic why the Protocol should 
be interpreted as protecting neutral merchant ships which are engaged 
in the same functional activities that result in lack of protection for an 
enemy merchant ship. 171 

It will be recalled that the International Military Tribunal held that 
Admiral Donitz violated the Protocol in ordering the sinking of neutral 
merchant ships in the submarine operational area. This aspect of the 
judgment has been criticized insofar as it extended to neutral merchant 
ships not engaged in genuine interneutral trade. 172 

The British use of ship warrants and the accompanying coercion imposed 
upon neutrals have been carefully described by Miss Behrens: 

In the summer of 1940 the ship warrant scheme was launched, both 
to further the purposes of economic warfare and in order to force 
neutral ships into British service or into trades elsewhere that were 
held to be esssential. No ship, it was ordained . . . was to be allowed 
any facilities in any port of the British Commonwealth unless the 
British had furnished her with a warrant. For the ill-disposed there 
were to be no bunkers, or stores, or insurance, or water or credit, 
no access to dry-docks, no Admiralty charts, no help or guidance or 
supplies of any sort. Since the British Commonwealth covered a very 
large area, and since various neutral countries, and particularly the 
United States, soon began from goodwill or self-interest to co-operate 
in the arrangements, trade for the ill-disposed though sometimes 
possible became exceedingly difficult. 173 

Certainly in a general war similar to the World Wars neutrals are not 
in an enviable position. Compliance with the demands of one belligerent 
will lead the opposing belligerent to regard the neutral merchant vesssel 
concerned as participating in the first belligerent's war effort and so sub- 
ject to treatment as though it were an enemy. 174 Whether particular 
neutral merchant ships obtained ship warrants because of coercion or 
because of a desire to cooperate, they were effectively integrated into the 
British and Allied war effort. It is difficult to find any sound reason why 
neutral merchant ships so integrated should not be subject to the same 
procedures of attack, including sinking without warning, to which enemy 
merchant ships may be subjected lawfully. 

The ship warrant system and the effective sanctions to enforce it de- 



171 A conclusion contrary to that stated in the text would appear necessarily to 
place exaggerated emphasis upon the word symbol "neutral." Even under the tradi- 
tional law neutrals were assimilated to enemies in some situations. See the text 
accompanying note 41 supra. 

172 See the text of Ch. Ill accompanying notes 121-27. 

173 Behrens, Merchant Shipping and The Demands of War 96 (History of the 
Second World War, United Kingdom Civil Series 1955). 

174 See McDougal & Feliciano 512-13. 



131 

scribed by Miss Behrens are a part of the comprehensive administrative 
methods of economic warfare practiced by the Allies during the Second 
World War. The British Ministry of Economic Warfare characterized 
this as a matter of changing the emphasis "from control on the seas to 
control on the quays." 175 The fact was that, even assuming that visit and 
search was otherwise feasible, boarding officers could not obtain adequate 
information concerning the voyages, cargoes, and destinations of particular 
neutral ships and they were even less able to obtain an overall view of the 
attempted enemy commerce in particular contraband items. The obtaining 
of accurate commercial intelligence was transferred from boarding officers 
at sea to ministries or boards of economic warfare operating at home and 
in neutral countries. The comprehensive economic warfare techniques in- 
cluding ship warrants, ship navicerts, and navicerts were not primarily 
designed to intercept contraband goods en route to the enemy. They were 
designed, rather, to prevent contraband goods from even being loaded upon 
a ship in a neutral port. In the same way, the certificates of enemy origin 
and interest were designed to prevent any neutral shipper from giving 
serious consideration to carrying enemy exports. In order to implement 
these techniques, British or Allied officers examined the cargo which was 
loaded in neutral ports and issued certificates stating compliance with 
contraband control or with enemy export control. 176 

It is clear, at least as a matter of theory, that neutrals need not cooperate 
with a belligerent which is enforcing a comprehensive economic warfare 
system. Noncooperation, however, would result in much more dangerous 
and destructive enforcement of economic warfare regulations. The tradi- 
tional techniques of enforcement at sea would be much more onerous to 
the neutral ship owner. The possession of the necessary certificates under 
the comprehensive system prevented neutral vessels from being subjected 
to the time-consuming, costly, and dangerous procedure of diversion to 
port for examination of the cargo and possible condemnation of the vessel 
and cargo. In addition, the neutral merchant ship which cooperated with 
the required procedures received the benefits of all the British and Allied 
facilities which were essential to the operation of a merchant vessel. These 
were, of course, the same facilities which were withheld from noncoopera- 
ting neutral merchant ships under the ship warrant system. In short, the 
comprehensive economic control system provides substantial benefits to 
cooperating neutrals. 177 

From the standpoint of the belligerent, the modern comprehensive sys- 
tem offers many advantages. Among these are a more complete and effici- 



175 1 Medlicott 416. 

178 The textual paragraph is based upon 1 Medlicott 415-659; 2 Medlicott 1-25, 
381-418 and passim; McDougal & Feliciano 509-19. 
177 Ibid. 



132 

ent interdiction of commerce to and from the enemy. In addition, the 
system results in an economy in the use of naval vessels which would other- 
wise be required for implementing the traditional enforcement techniques 
at sea. Military efficiency is advanced by the high degree of effectiveness 
achieved by the comprehensive system. At the same time considerations 
of humanity are advanced by its substantially less destructive characteristics 
in comparison with the traditional methods. 178 In summary, the system 
operates in an eminently reasonable manner and it is consequently as 
unrealistic to attempt to declare its illegality as between the enforcing 
belligerents and the neutrals as it would be to attempt to do so between 
the opposing belligerents. 

b. NEUTRALS WHICH ARE NOT PARTICIPATING IN 
THE WAR OR HOSTILITIES 

In appraising submarine operational areas in general war it was 
stated that belligerent states utilizing such areas had a legal obligation 
to provide safe lanes or routes for neutral merchant ships engaged in 
genuine interneutral trade. 179 In considering neutral merchant ships as 
objects of attack, it is clear that everything possible should be done by the 
belligerents to protect such ships which are engaged in genuine interneutral 
trade. By definition, this trade does not enhance the economic war strength 
of one or the other belligerent. An attack upon a neutral merchant ship 
known to be engaged in interneutral trade is, therefore, a violation of law. 
It should be mentioned that even though this principle is clear there are 
substantial difficulties involved in actually protecting such ships in a general 
war where many merchant ships are integrated into the war effort of a 
belligerent. It is reasonable to expect that more effective protection for 
neutral ships which are not participating in the war or hostilities can be 
provided in limited war situations. 

5. Enemy Personnel as Objects of Attack 

It is lawful to kill or wound enemy combatants, that is, naval or 
merchant marine personnel, pursuant to a lawful attack upon an enemy 



178 Sea power was the ultimate sanction for the comprehensive system of economic 
warfare as it was the immediate sanction for the traditional system. 1 & 2 Medlicott 
passim. The British also considered sanctioning devices which they did not employ: 

The legal advisers to the Ministry [of Economic Warfare] and Foreign Office 
pointed out that if it were announced that ships without navicerts 'would be 
liable after seizure to be sent in or sunk according to circumstances,' this would 
not necessarily involve action outside international law, although a plain an- 
nouncement that ships without navicerts would be liable to be sunk would not 
be justified under existing principles or any admissible extension of them. 
1 Medlicott 434. 

179 See the text of Gh. Ill accompanying note 9&. 



133 

warship or merchant ship. During such an attack it is not only lawful to 
kill or wound the combatant personnel, but it is also lawful to kill or wound 
the otherwise especially protected medical and religious personnel inci- 
dental to the attack on the ship. 180 In general, the legal doctrines concern- 
ing personnel as objects of attack perform the relatively modest role of 
prohibiting violence which is already unnecessary to achieve the military 
objective of an attack. As a rule, enemy naval or merchant marine person- 
nel who have become helpless or who have come under the power of a 
belligerent are no longer lawful objects of attack. The result is that sub- 
sequent or continuing violence which is directed against them is illegal. 

a. THE DUTY TO GIVE QUARTER 

The duty to grant quarter when an enemy surrenders is as appli- 
cable to sea warfare as it is to land warfare. 181 In sea warfare there are 
special problems including the mode of manifesting surrender. The Trial 
of Von Ruchteschell, 182 where the defendant was the commander of a 
German surface raider, illustrates some of the issues arising in connection 
with the duty to give quarter at sea. There were two charges that the 
defendant had continued the attack after the enemy merchant ship had 
indicated surrender. The first charge involved a daylight attack against the 
Davisian in which its wireless aerial was destroyed with the raider's first 
salvo. 183 The raider maintained heavy fire and signaled that the ship 
attacked was not to use its radio. The report states: "The captain of the 
Davisian stopped his engines, hoisted an answering pennant and acknowl- 
edged the signal." 184 The gunfire continued fifteen minutes longer, how- 
ever, and wounded several members of the crew while they were trying 
to abandon ship. The basis of the conviction of the accused on this charge 
was apparently that the ship attacked had given an unequivocal indication 
of surrender. 

The second charge involving refusal to give quarter involved a night 
attack upon the Empire Dawn in which the raider's first salvo set the 



180 See Oppenheim-Lauterpacht 498-99, where "stokers" are classified with medi- 
cal and religious personnel. Neither stokers nor nuclear propulsion specialists should 
be classified as noncombatants. 

See generally Watson, "Status of Medical and Religious Personnel in International 
Law," 20 JAG J. 41 (1965). 

181 Oppenheim-Lauterpacht 474. 

182 1 Reps. U.N. Comm. 82 (1947). 

It is fair to mention here that, with one conspicuous exception [Von Ruchte- 
schell], the captains of the German disguised raiders conducted their operations, 
which were a perfectly legitimate form of warfare, with due regard to inter- 
national law. 
Roskill 97. 

™ 1 Reps. U.N. Comm. 82, 83. 
184 Id. at 82. 



134 

bridge on fire and destroyed the wireless. 185 Even though the ship under 
attack was rendered powerless by the first salvo, it continued to move 
through the water and was still moving when it began to sink. The Empire 
Dawn did not open fire and its captain signaled by torch that he was 
abandoning ship. During these events the raider's fire continued while the 
lifeboats were being lowered and cut the lines of one of the lifeboats. It 
crashed into the sea and several members of the crew were killed. The 
accused was not convicted on this charge and the apparent distinction 
was that the Empire Dawn had not given an unequivocal manifestation 
of surrender. In addition, it seems probable that the torch signal from the 
burning ship could not have been seen on the raider. The fact that the 
ship was actually sinking while the raider's fire continued appears to have 
been inadequate consideration. 

In this case two naval officers, one British and one German, appeared 
as expert witnesses. Their common evidence concerning manifestation of 
surrender was summarized as follows : 

( 1 ) the attacked ship must stop her engines ; ( 2 ) if the attacker signals, 
the signal must be answered — if the wireless is out of action, it must 
be answered by a signalling pennant by day or by a torch or flashlight 
by night ; ( 3 ) the guns must not be manned, the crew should be amid- 
ships and taking to the lifeboats; (4) the white flag may be hoisted 
by day and by night, all the ship's lights should be put on. 186 

The duty to give quarter is, of course, the same in submarine warfare 
as it is in other naval warfare. There are undoubtedly unusual problems 
which occur concerning manifestations of surrender in submarine warfare. 
A submarine even when fully surfaced lies low in the water. There may 
be, consequently, particular difficulties in observing a submarine's manifes- 
tation of surrender. Where a submarine is forced to the surface following 
depth charging, it seems reasonable that the submarine's commander 
should be given an opportunity to surrender unless an unequivocal inten- 
tion of fighting it out on the surface is manifested. The attempt of a surface 
ship to indicate surrender to a submerged submarine also raises problems. 
For example, it is clear that the submerged submarine at periscope depth 
has only limited visibility. 

b. DUTIES TO SURVIVORS 

The rescue of survivors is particularly important in sea warfare. 
If the survivors are not rescued within a short period of time, their chance 
of survival is greatly reduced. The common interest of states in rescuing 
survivors is reflected in the Geneva Sea Convention: 

After each engagement, Parties to the conflict shall, without delay, 



185 Id. at 83. 
188 Id. at 89. 



135 

take all possible measures to search for and collect the shipwrecked, 
wounded and sick, to protect them against pillage and ill-treatment, 
to ensure their adequate care, and to search for the dead and prevent 
their being despoiled. 187 

The notes to the Trial of Von Ruchteschell state the following proposi- 
tions concerning duties to survivors: 

(1) [I]f the raider is aware of survivors who have taken to their life- 
boats, he must make reasonable efforts to rescue them; (2) it is no 
defence that the survivors did not draw attention to their boats if they 
had reasonable grounds to believe that no quarter was being given. 188 
There can be no doubt concerning the urgency of rescue in submarine 
warfare. Rescue in such a context, unfortunately, appears to be particularly 
difficult. It is especially dangerous to attempt the rescue of submarine per- 
sonnel if other submarines are in the vicinity. Where the rescue by sub- 
marines of surviving personnel is in issue, the grim facts are that submarines 
in both World Wars were small vessels without adequate passenger 
facilities. 

Admiral Donitz was charged before the International Military Tribunal 
with ordering the killing of survivors and issuing orders prohibiting res- 
cue. 189 It will be recalled that the basic rule in the second paragraph of 
the Protocol prohibits a warship from sinking "a merchant vessel" unless 
the passengers and crew are first put in a place of safety. In its application 
of this provision of the Protocol in its judgment in the case of Admiral 
Donitz, the Tribunal stated : 

The evidence further shows that the rescue provisions [of the 
Protocol] were not carried out and that the Defendant ordered that 
they should not be carried out. The argument of the Defense is that 
the security of the submarine is, as the first rule of the sea, paramount 
to rescue, and that the development of aircraft made rescue impos- 
sible. This may be so, but the Protocol is explicit. If the commander 
cannot rescue, then under its terms he cannot sink a merchant vessel 
and should allow it to pass harmless before his periscope. These orders, 
then, prove Donitz is guilty of a violation of the Protocol. 190 

Perhaps the most obvious inadequacy of the quoted portion of the judg- 
ment is that the Protocol, as demonstrated above, only applies to merchant 
vessels which are not participating in the war or hostilities. One may 
seriously question, consequently, whether or not among the merchant ships 
sunk by German submarines during the Second World War there were 
any significant number of cases where the Protocol, including its rescue 



187 Art. 1 8, paragraph 1 . 

188 1 Reps. U.N. Comm. 88. 



189 1 I.M.T. 313. 

190 Ibid. 



136 

provisions, was applicable. In addition, the opinion of the Tribunal ignores 
the facts of submarine warfare including the lack of space for passengers 
in submarines. 

An adequate sense of reality on this subject may be achieved by consid- 
eration of Admiral Nimitz' answer to a question propounded on behalf 
of Admiral Donitz by the International Military Tribunal : 

13. Q. Were, by order or on general principles, the U.S. submarines 
prohibited from carrying out rescue measures toward passen- 
gers and crews of ships sunk without warning in those cases 
where by doing so the safety of the own boat was endangered? 
A. On general principles the U.S. submarines did not rescue 
enemy survivors if undue additional hazard to the submarine 
resulted or the submarine would thereby be prevented from 
accomplishing its further mission. U.S. submarines were lim- 
ited in rescue measures by small passenger-carrying facilities 
combined with the known desperate and suicidal character of 
the enemy. Therefore it was unsafe to pick up many survivors. 
Frequently the survivors were given rubber boats and/or pro- 
visions. Almost invariably survivors did not come aboard the 
submarine voluntarily and it was necessary to take them pris- 
oner by force. 191 
Thus, according to Admiral Nimitz, United States submarines did not 
attempt rescue if either additional danger existed or if the submarine's 
military mission would be frustrated. It seems neither reasonable nor just 
fo require a different standard on the part of German submarines. Even if 
more were to be required as a matter of legal doctrine it is difficult to see 
how such a rule could be sanctioned unless submarines were provided with 
more adequate passenger-carrying facilities. 

It should be mentioned also that there were apparently numerous in- 
stances when it was not feasible for surface warships to make rescue at- 
tempts even though they had adequate passenger facilities. The British 
heavy cruiser Devonshire, operating in the South Atlantic, sank the German 
raider Atlantis on November 22, 1941 and the German supply ship Python 
on November 30, 1941. In neither case was rescue attempted since it was 
thought that U-boats might be in the vicinity. 192 

To say that rescue cannot be attempted by submarines in the two situa- 
tions stated by Admiral Nimitz is not to say that submarines cannot render 
other assistance to survivors. Admiral Nimitz referred to giving "rubber 
boats and/or provisions" to the survivors. There is no reason why assistance 
of this kind should not be regarded as legally obligatory when rescue is not 

191 40 I.M.T. 108, 110. 

193 Id. at 99; Ruge, Der Seekreig: The German Navy's Story 1939-1945 175-76 
(1957). 



137 

possible and when military necessity permits. In summary, there is an ob- 
ligation to rescue survivors when there is neither undue hazard to the sub- 
marine nor an interference with its military mission. When these conditions 
exist there is a particular obligation to assist survivors short of rescue, as by 
righting overturned lifeboats and providing rubber boats, food, and medical 
supplies. Humanitarian considerations and acts must be encouraged in 
every practical way even though they have had a secondary role to military 
necessity in combat situations. 

The German attempt to establish a rescue zone of immunity during the 
period September 12-16, 1942 following the sinking of the British troopship 
Laconia and its frustration by the United States aircraft bombing attack 
has been described. 193 On September 17, 1942 the German U-boat Com- 
mand issued the "Laconia Order." 194 It was not given to U-boat captains 
in writing but it was regularly read or stated to them as a part of the 
briefing they received before leaving on war patrols. It provided: 

(1) No attempt of any kind must be made at rescuing members 
of ships sunk, and this includes picking up persons in the water and 
putting them in lifeboats, righting capsized lifeboats and handing over 
food and water. Rescue runs counter to the rudimentary demands of 
warfare for the destruction of enemy ships and crews. 

(2) Orders for bringing in captains and chief engineers still apply. 

(3) Rescue the shipwrecked only if their statements would be of 
importance for your boat. 

(4) Be harsh, having in mind that the enemy has no regard for 
women and children in his bombing attacks on German cities. 195 

It should be taken into consideration that at the time of the issuance of 
the quoted order Admiral Donitz must have been under severe psychologi- 
cal pressure in view of the attack made upon the German submarines 
engaged in the Laconia rescue operations. It is apparent that the quoted 
order is inconsistent internally. Paragraph (1) appears to prohibit rescue 
while paragraphs (2) and (3) seem to justify, or even to order, rescue in 
particular circumstances. The admonition of harshness contained in para- 
graph (4) is subject to diverse interpretations. 

In its judgment concerning Admiral Donitz the Tribunal stated: 

It is also asserted that the German U-boat arm not only did not 
carry out the warning and rescue provisions of the Protocol but that 
Donitz deliberately ordered the killing of survivors of shipwrecked 
vessels, whether enemy or neutral. . . . The Defense argues that these 
orders [including the Laconia order] and the evidence supporting 



103 See the text of Ch. Ill accompanying notes 132-39. 

194 Text of order in Trial of Moehle, 9 Reps. U.N. Comm. 75 (1946). 

195 Ibid. The same formulation of the order appears in The Peleus Trial, 1 Reps. 
U.N. Comm. 1,5 (1945). 



138 

them do not show such a policy and introduced much evidence to the 
contrary. The Tribunal is of the opinion that the evidence does not 
establish with the certainty required that Donitz deliberately ordered 
the killing of shipwrecked survivors. The orders were undoubtedly 
ambiguous, and deserve the strongest censure. 196 

There are some aspects of the quoted judgment which present difficulties. 
It is possible that the Tribunal regarded the ambiguity of the order as 
arising from doubt as to whether the purpose of the order was to forbid 
rescue or was to direct the killing of survivors. If it was the latter, it was 
unlawful but the Tribunal acted with restraint in resolving the ambiguity 
in favor of Admiral Donitz in the criminal proceedings. If the Laconia 
order was an attempt to prohibit the rescue of survivors in the situations 
of operational necessity in which Admiral Nimitz indicated that survivors 
were not rescued by United States submarines in the Pacific, the order was 
lawful in this respect. 197 

The real basis for criticism of the order is the reference in the first 
paragraph to not assisting survivors as by putting them in lifeboats and 
giving them provisions. These statements are contrary to the legal obliga- 
tions of submarine personnel to assist survivors when military necessity 
prevents their conducting rescue operations. This illegal portion of the 
Laconia order should not be justified as a reprisal measure to the aircraft 
attack upon the German submarines engaged in the rescue operations. 
During the Second World War Hague Convention X (1907) was in effect 
and it contained no specific prohibition concerning directing reprisals at 
survivors. Elementary considerations of humanity and morality would, 
nevertheless, indicate conclusively that reprisals should not be directed at 
helpless survivors of a sunken ship. Reprisals against survivors including 
the wounded, sick, and shipwrecked are expressly prohibited by the Geneva 
Sea Convention. 198 

In the Trial of Moehle 199 the defendant was a German U-boat flotilla 
commander who was charged with a war crime in the contents of the 
instructions he gave to his commanding officers prior to their departure on 
war patrols. The briefing consisted primarily of technical matters but the 
defendant read the Laconia order. If questions were asked, he provided 
two examples. 200 The first concerned a U-boat commander who reported 
seeing a raft with five British airmen on it in the Bay of Biscay. It was 
stated that he was severely reprimanded by the U-boat Command and was 
told that the correct action would have been to destroy the raft since 



196 1 I.M.T. 313. 

197 The conclusion of the illegality of the order as a whole is stated in Tucker 73. 



198 Art. 47. 

15)9 9 Reps. U.N. Comm. 75 (1946) 

200 Id. at 75 



139 

otherwise it was probable that the airmen would be rescued and go into 
action again. The second example involved the sinking of American ships 
near land. The official criticism directed against the submarine command- 
ers was said to be that the crews had not been destroyed but probably 
reached the coast and manned new ships. After giving these examples, the 
defendant said that each commander must act according to the dictates of 
his conscience and that the safety of his boat should be his primary con- 
sideration. 

The defense argued that the Laconia order was ambiguous but that its 
purpose was to impress upon submarine commanders that they should not 
rescue survivors since doing so endangered the submarines. 201 It was thus 
regarded as a legal order based upon operational necessity. The prosecution 
contended that the purpose of the order was to direct the killing of sur- 
vivors. 202 The central legal issue, however, concerned Moehle's role in 
commenting upon the order. The court apparently regarded his stated 
examples as resolving its ambiguities and thereby changing it into an order 
to kill survivors and he was convicted. 203 

Perhaps the most obvious duty to survivors is to refrain from killing 
them. Unfortunately this duty has been violated in some instances. The 
importance of the subject justifies separate consideration. 

c. THE PROHIBITION OF KILLING SURVIVORS 

Survivors struggling in the water or seeking safety on life rafts or 

in lifeboats are no longer effective instruments of enemy military power. 

It should be abundantly clear that they are not lawful objects of attack. 
In The Peleus Trial 204 the commander of the German submarine U-852 

and three officers and a rating of the same submarine were charged with: 
Committing a war crime in that you in the Atlantic Ocean on the 
night of 13/ 14th March, 1944, when Captain and members of the 
crew of Unterseeboot 852 which had sunk the steamship Peleus in 
violation of the laws and usages of war were concerned in the killing 
of members of the crew of the said steamship, Allied nationals, by 
firing and throwing grenades at them. 205 

The prosecution resolved the uncertainty in the charge by stating that the 



201 Id. at 77, 80. 
2,12 Id. at 76. 

Id. at 80. He was sentenced to imprisonment for five years. Id. at 78. 

204 This case, also known as the "Trial of Eck," is reported in ( 1 ) the entire vol. 
1 of War Crimes Trials (Maxwell Fyfe, gen. ed. ; Cameron, ed. of vol. 1; decision 
1945; pub. 1948) ; (2) 1 Reps. U.N. Coram. 1 (1945). 

The present analysis of the case is based principally upon the report in 1 War 
Crimes Trials which apparently contains the complete or almost complete record 
of the proceedings. 

205 1 War Crimes Trials 3 ; 1 Reps. U.N. Comm. 2. 



140 

defendants were not accused of sinking the merchant ship without warn- 
ing but of killing its survivors. 206 

The crew of the Peleus consisted of thirty-five individuals comprising 
eight nationalities. The ship was of Greek registration and was under 
charter to the British Ministry of War Transport. Following the sinking 
of the ship many of the surviving crew members climbed aboard rafts or 
floating wreckage. The submarine cruised about the scene for approxi- 
mately five hours after the sinking while the survivors and the wreckage 
were made the objects of machine gun and hand grenade attack. Practi- 
cally all of the survivors were either killed or subsequently died of wounds 
except for three who managed to conceal themselves and stay alive. They 
were rescued about a month later and recounted these grim events. 207 
The U-852 was, thereafter, beached under air attack on the east coast of 
Africa and its log revealed the sinking of a merchant ship at the location 
where the Peleus was sunk. The prosecution relied upon affidavits prepared 
by the three survivors of the Peleus as well as upon testimony of members 
of the crew of the U-boat who were not directly involved in the killing. 
The evidence indicated that the defendant, Eck, the captain of the U-boat, 
ordered the shooting and throwing of hand grenades at the rafts and the 
wreckage and that the other accused carried out his orders. 

The defense of Eck was based principally upon the claim that it was 
operationally necessary for him to eliminate all traces of the sinking in 
order to save the U-boat from Allied antisubmarine warfare measures. 208 
Eck was aware of the aircraft bombing attack on the submarines which 
were rescuing the survivors of the Laconia. He testified on this subject: 

This case showed me that on the enemy's side military reasons take 

precedence over human reasons before saving the lives of survivors. 

For that reason I thought my measures justified. 209 
Eck was also aware of the Laconia order but he did not invoke it as a 
superior order which directed his actions. 210 If he had done so it would 
have had very unfavorable consequences for Admiral Donitz in the later 



206 Ibid. It is clear, by inference, that the sinking without warning was not regarded 
as illegal. In the same way, in the Trial of Von Ruchteschell (see the text accom- 
panying note 181 supra) there was no charge concerning sinking without warning 
although the defendant, as a raider commander, was responsible for the sinking of 
several ships without warning. 

207 The facts stated in the textual paragraph were developed in the case of the 
prosecution and not controverted in any material respect by the defense: 1 War 
Crimes Trials 7-38; 1 Reps. U.N. Coram. 2-4. 

208 1 War Crimes Trials 105-07; 1 Reps. U.N. Comm. 4. 

209 1 War Crimes Trials 55. 

210 1 War Crimes Trials 42-47 (opening argument for Eck), 47-64 (evidence for 
Eck), 103-07 (closing argument for Eck); 1 Reps. U.N. Comm. 4-5. 

Shortly before his execution Eck gave a deposition to be used in behalf of Admiral 
Donitz before the I.M.T. in which Eck stated that he had received no orders to 



141 

trial before the International Military Tribunal. 211 The other accused 
relied principally upon the plea of superior orders, specifically, Eck's orders 
to them. 212 

An experienced U-boat commander testified in behalf of the defense. 213 
He emphasized the efficiency and rapidity of Allied antisubmarine counter- 
attack measures at the time and in the area of the sinking of the Peleus. 
Under questioning by the judge advocate this officer conceded that he 
would not have done the same thing that Eck did in the circumstances. 214 
Apparently he would have followed the usual U-boat procedure of leaving 
the scene of a sinking at high speed. Since the particular sinking took 
place at night it would have been relatively safe for the U-boat to use 
its high-surface speed during the hours of darkness. Whatever defensive 
action was taken by the U-boat following the sinking it is probable that 
even if all of the wreckage had been destroyed the place of the sinking 
would have been marked by an oil slick easily visible from the air. 215 

Eck and two of the accused officers (one was the ship's medical officer) 
were found guilty and condemned to death. 216 The remaining two accused 
were also found guilty but received lesser sentences because of mitigating 
circumstances. 217 Eck's defense of operational necessity was not justified 
and this was conceded even by the veteran submarine commander called 
by the defense. The facts demonstrate that helpless survivors were murder- 
ed on the high seas. 218 It is also clear that the plea of superior orders did 



kill survivors. 1 War Crimes Trials 226-29 (appendix 22); 40 I.M.T. 51 (Donitz 
Document — 36) . 

Prof. Tucker states that "the illegality of the [Laconia] order should be placed 
beyond question" because of its interpretation and application in the Moehle and 
Peleus cases. Tucker 73. This conclusion does not take account of the fact sum- 
marized above and also the fact that Eck did not invoke superior orders as a 
defense in the Peleus case. In addition, the Moehle case involved Moehle's mis- 
interpretation of the Laconia order rather than the order itself. See the text accom- 
panying notes 199-203 supra. 

211 The prosecution before the I.M.T. could then have claimed that the Peleus 
case was an implementation of the Laconia order. 

213 1 War Crimes Trials 107-17; 1 Reps. U.N. Comm. 4, 9-10. 

213 Id. at 65-71; id. at 6-7. 

214 Id. at 69-70; id. at 6. 

215 There would not have been a large oil slick if the Peleus were a coal-burning 
ship. Eck referred to this in his testimony. 1 War Crimes Trials 59. 

2,6 1 War Crimes Trials 132, 139; 1 Reps. U.N. Comm. 12-13. 

217 Ibid. 

218 The related Case of Dithmar and Boldt (the Llandovery Castle case), German 
Reichsgericht (July 16, 1921), reported in 16 A.J.I.L. 708 (1922), concerned the 
situation of a German submarine firing upon the lifeboats of a sunken British hospital 
ship and resulted in the conviction of two officers of the submarine who acted under 
the orders of the captain (who was not before the court). This case was decided by a 
municipal court applying international law doctrines. It is an apt precedent for the 



142 

not justify the actions of the other defendants since Eck's orders were 
illegal upon their face. 

The judgment of the International Military Tribunal for the Far East 
states : 

Inhumane, illegal warfare at sea was waged by the Japanese Navy 

in 1943 and 1944. Survivors of passengers and crews of torpedoed 

ships were murdered. 219 

The Far East Tribunal judgment quotes a command in an order issued 
by the Commander of the Japanese First Submarine Force at Truk on 
March 20, 1943: 

All submarines shall act together in order to concentrate their attacks 
against enemy convoys and shall totally destroy them. Do not stop 
with the sinking of enemy ships and cargoes; at the same time, you 
will carry out the complete destruction of the crews of the enemy's 
ships; if possible, seize part of the crew and endeavor to secure in- 
formation about the enemy. 220 

There is convincing evidence that this order was carried out on several 
occasions. A number of examples are referred to in the judgment of the 
Far East Tribunal. 221 One which is summarized involved the sinking of 
the United States Liberty-type merchant ship Jean Nicolet which had an 
armament manned by a U.S. Navy Armed Guard. 222 The judgment states: 

The massacre of survivors of the American ship "Jean Nicolet" is 
another example of methods employed by the Japanese Navy. This 
ship was travelling from Australia to Ceylon in July 1944 when she 
was torpedoed at night by a Japanese submarine while some 600 
miles from land. Her ship's company was about 100 of whom about 
90 were taken aboard the submarine. The ship was sunk and her boats 
were also smashed by gun fire although all did not sink. The hands 
of the survivors were tied behind their backs. A few of the officers were 
taken below and their fate is not known to the Tribunal. The remain- 
der were made to sit on the forward deck of the submarine as she 
cruised searching for survivors. During this time some were washed 
overboard and others were beaten with wooden and metal bludgeons 



decision in the Peleus case and was so argued by the prosecution. 1 War Crimes 
Trials 117-19; 1 Reps. U.N. Comm. 19, 20. 

The Baralong incident should also be mentioned. It was alleged that this British 
Q-ship killed German submarine survivors in the water. Oppenheim-Lauterpacht 
510, n.2; Sheer, Germany's High Sea Fleet in the World War 232 (1920); [1915] 
Foreign Rel. U.S. Supp. 527-29, 575-77, 650-51 (1928). 

sao F.E.I.M.T. Judg. p. 1,072 (one thousand seventy-two). 

220 Id. at p. 1,073. 

221 Id. at pp. 1,073-74. 

222 Further details on the Jean Nicolet incident appear in F.E.I.M.T. Proc. pp. 
15,095-14-8 (fifteen thousand ninety-five through one hundred forty eight). 



143 

and robbed of personal property such as watches and rings. Then 
they were required to proceed singly towards the stern between lines 
of Japanese who beat them as they passed between their ranks. Thus 
they were forced into the water to drown. Before all the prisoners had 
been forced to run the gauntlet the vessel submerged leaving the re- 
maining prisoners on her deck to their fate. Some, however, did sur- 
vive by swimming. These and their comrades whom they kept afloat 
were discovered the next day by aircraft which directed a rescuing 
ship to them. Thus twenty-two survived this terrible experience, from 
some of whom this Tribunal received testimony of this inhumane con- 
duct of the Japanese Navy. 223 

The attacks upon the surviving personnel of the Peleus and the Jean 
Nicolet have been examined here because both of the incidents have major 
significance for the international law of sea warfare. The central point 
is that the enemy, particularly when he is helpless and struggling for sur- 
vival, must be regarded as within the broad scope of the common humanity 
of all mankind. 224 Only when the victims are dehumanized in the view of 
their enemy are they likely to be treated as were the survivors of the Peleus 
and the Jean Nicolet. There is the urgent need for worldwide recognition 
and effective implementation of the right of all individuals to fair and non- 
discriminatory treatment, even in situations of coercion and violence. A 
concrete step toward this goal can be achieved by enforcing the Geneva 
Conventions for the Protection of War Victims and the elementary pro- 
hibition of killing survivors. 

6. Objects and Methods of Attack in Future General War 

The same types of general war which have been postulated previously 
in this study are now employed to appraise objects and methods of attack. 
These types are a nonnuclear general war similar to the World Wars or 
the same type of war with a restricted use of nuclear weapons. 225 The prin- 
cipal legal issue arising concerning the objects and methods of attack of 



2Zi F.E.I.M.T. Judg. pp. 1074-75. 

Beach, Run Silent, Run Deep 319-22 (Permabook ed. 1956) describes a United 
States submarine sinking by ramming each of the lifeboats of a sunken Japanese 
Q-ship. Even though the account appears in a novel, it provides accurate illustration 
of the murder of survivors and the psychological attitudes which cause it. 

224 From your perspective or mine the creative opportunity is to achieve a self- 
system larger than the primary ego; larger than the ego components of family, 
friends, profession, or nation ; and inclusive of mankind. 
Lasswell, "Introduction: Universality Versus Parochialism," in McDougal & Feli- 
ciano xix, xxiv. 

Admiral Biorklund of the Swedish Navy postulates a general war involving 
restricted use of nuclear weapons in which merchant ships would be principal objects 
of attack in "Sea-Air Strategy and Submarine Warfare II," 104 /. Royal United 
Serv. Inst. 203 (1959). 



144 

submarines in such a future war is whether or not merchant ships parti- 
cipating in the naval war effort may be attacked lawfully without warn- 
ing. In resolving this issue, appropriate weight must be accorded to the 
past process of legal decision in general war. 

During the First World War there was, without doubt, widespread 
shock and revulsion at the destruction of the "noncombatant" human 
values involved in the German use of submarines. 226 In commenting upon 
that German unrestricted submarine warfare, Professor Garner has writ- 
ten: 

The rule referred to [concerning safety] was adopted for the protec- 
tion of innocent non-combatants, not for the benefit of belligerents, 
and it cannot be admitted that the invention of new instruments 
repeals or modifies the rule. The use of the [submarine] instrument 
must be adjusted to the requirements of the law of nations and of 
humanity and not they to the instrument. 227 

There can be no dispute concerning the desirability of according priority 
to the principle of humanity. It is apparent, nevertheless, that enforceable 
legal doctrines which accord some consideration to humanity are better 
than unenforceable ones which accord all consideration to it. The only 
difficulty presented by Professor Garner's demand for humanity is that it 
cannot be enforced in combat situations, even to a modest degree, without 
taking full account of the complementary principle of military necessity. 
In the Second World War the United States adopted the same methods 
of submarine warfare which it had regarded as indefensible in the earlier 
war. The military utility of the submarine against the merchant ship when 
attacks were made without warning was of decisive importance. Even if 
doubt remained after the First World War, it is clear now that the prin- 
ciple of humanity has been adjusted to the requirements of the efficient 
military use of submarines. As Professor Lauterpacht has recognized, the 
problem of "unrestricted submarine warfare" is a part of the larger ques- 
tion concerning the validity of the combatant-noncombatant distinction 
in general war. 228 In referring to civilians on land who were the victims 
of the long-distance blockade, he has stated : 

The practice of two world wars was based on the view that no such 
sacrosanctity attaches to the civilian population at large as to make 
illegal the effort to starve it alongside the miltary forces of the enemy 
as a means of inducing him to surrender. 229 
It is certainly regrettable, but nevertheless a fact, that civilians who have 



228 Concerning the sinking of the Lusitania: "The American public was horrified." 
Buehrig 30. 

227 1 Garner 378. 

228 Lauterpacht, "The Problem of the Revision of the Law of War," 29 Brit. 
Y.B.I.L. 360, 374 (1952). 

229 Ibid. 



145 

embarked upon merchant ships which are engaged in the naval war effort 
in one way or another have shared the fate of those ships. 230 

In identifying objects of attack in the event of a future general war, 
it must be recalled that the nuclear-powered and nuclear-armed attack 
submarine is a much more efficient combatant unit than its predecessors 
of the World Wars. In general war it is most unlikely that other consid- 
erations will be given priority over those concerning military efficiency in 
the use of such submarines. It is probable, therefore, that merchant ships 
participating in the naval war effort of one belligerent will be subject to 
attack without warning by the submarines of the opposing belligerent. 
This has been appraised as lawful under the Protocol in World War II 
and it will be lawful also in a future general war if the past process of 
decision is a reliable guide. 231 The destructiveness of human values in- 
volved in the use of nuclear attack submarines would be even less dis- 
proportionate to their military efficiency than was the situation involving 
the use of traditional submarines in both World Wars. 

Writing in 1934, Admiral Richmond stated: 

Effective as the submarine may be in attack upon mercantile ship- 
ping, she is of negligible use in its direct defense. A convoy cannot 
be defended by submarines. . . . 232 

The statement was not only accurate when made but remained valid 
during World War II. The advent of nuclear-powered submarines with 
high underwater speeds has probably changed the situation drastically. 
The contemporary nuclear attack submarine may be susceptible of efficient 
utilization in protecting surface merchant ships from enemy attack sub- 
marines. If submarine merchant ships and nonpowered towed submarine 
cargo carriers 233 are to be escorted effectively, the escorts must be sub- 
marines. In this context of possible future submarine warfare it is probable 
that submarine merchant ships will be subject to sinking without warning 
as their surface predecessors have been in two World Wars. There is no 
basis upon which to conclude that such sinkings would be a violation of 
the Protocol if the objects of attack were participating in any way in the 
war or hostilities. 234 

The world community interest in limiting violence is not advanced by 



230 See the text accompanying supra notes 81, 82. 

231 Compare the view in Barnes, "Submarine Warfare and International Law," 2 
World Polity 121, 189-90 (1960): "International Law as pertaining to submarine 
warfare would be immediately and consistently violated [in a future war]." "A 
change in the law of the sea, encompassing the submarine problem, is badly needed." 
Id. at 201. 

Richmond, Sea Power in the Modern World 177 (1934). 

Towed submarine cargo carriers were employed by the Japanese in World War 
II as stated in the text of Ch. I accompanying note 29. 
234 See the discussion in Hyde 1992-93. 



232 
2-'!3 



146 

the practice of subjecting merchant ships participating in the war or hostil- 
ities to submarine attack without warning even though the practice must 
be appraised as lawful. This situation is, however, only a part of the 
overall community interest. This broader community interest in limiting 
violence is not advanced by general war. The attempt to find a further 
limitation of violence in submarine warfare must be made in the context 
of limited war. 

C. CLAIMS CONCERNING OBJECTS AND METHODS OF 
ATTACK IN LIMITED WAR 

The Harvard Research, Rights and Duties of Neutral States in Naval 
and Aerial War states: 

It seems obviously impossible to distinguish in a Draft Convention 
between "small" wars and "large" wars and it is accordingly impos- 
sible to lay down two set of rules applicable to the two different types 
of situations. 235 

Draft conventions and other "restatements" often reveal excessive con- 
cern with abstract doctrinal formulations without sufficient regard to the 
great variations in the factual context which exist. 236 Considering the 
importance of the human values which are involved, it is worth the effort 
to consider objects and methods of attack in limited war situations. In 
addition, Professor Osgood has stated the important point that: "The 
decisive limitation upon war is the limitation of the objectives of war." 237 
The same two types of limited war context which have been considered 
previously will be employed again. 

1. Claims by Major Powers in Limited War 

In a limited war between major powers involving the use of sub- 
marines, it may be confidently predicted that the newest and most efficient 



235 Harvard Research, Naval War 487. 

236 See e.g. American Law Institute, Restatement of the Foreign Relations Law of 
the United States passim (1965). See the thoughtful criticism of the portions of 
this restatement concerning international agreements in Lissitzyn, "The Law of 
International Agreements in the Restatement," 41 N.Y. Univ. L. Rev. 98, 123-24 
(1966): 

It is apparent that the Restatement format does not lend itself well to the 
clarification of the law in an area as rapidly changing and as little developed 
by judicial authority as that of international agreements The Restatement format 
makes impossible a really challenging and enlightening discussion of the many 
uncertainties and the probable direction of development of the law in light of 
the needs of the world community. . . . The result is an unfortunate impression 
of dogmatism and of a static conception of a highly dynamic branch of law — 
in short, of "a frozen cake of doctrine". 

237 Osgood 4. 



147 

types of nuclear attack submarines will be involved. 238 The central ques- 
tion concerns the mutual restraints relating to objects of attack which the 
major belligerent powers would recognize. A hopeful condition which may 
be postulated is that the enemy commerce at sea would be likely to be a 
much less significant object of attack than it was during the World Wars. 
There are several factors which tend to make this postulate a realistic one. 
First, a limited war between major Powers is unlikely to require a full 
effort by the productive forces of the economy. Second, it would probably 
not be necessary to devote a large proportion of a state's merchant marine 
to the functions of supplying the economy with necessary raw materials 
and of transporting troops and supplies to the battle areas. Third, to at- 
tempt to achieve complete interdiction of enemy commerce at sea, as was 
done during the World Wars, would make it very difficult to retain the 
limited characteristics of the war. 

If the enemy commerce at sea were a less important object of attack, 
the risks involved in an all-out attack against enemy merchant shipping, 
including sinking without warning, would not be proportionate to the val- 
ue of the military objective sought. In these circumstances, rational bel- 
ligerents mindful of their self-interests would refrain from attacks upon 
enemy merchant vessels without warning. 

It has been concluded that the Protocol does not extend its protection 
to merchant ships participating in the naval war effort. 239 This interpre- 
tation was made with reference to the context of general war and should 
not be applied automatically in limited war. In addition, the commerce 
in limited war which has just been described is not participating directly 
in the naval war effort. The merchant ships involved are actually perform- 
ing functions closer to those which are regarded as peaceful than those 
deemed warlike. In this factual context, there are good reasons to extend 
the protection of the Protocol to them. The reasons are more persuasive 
if it is postulated that these merchant ships present no military danger to 
submarines. Consequently, the Protocol should be interpreted as applying 
to and protecting such merchant ships. 

It is probable, even where sea commerce in general is not an important 
object of attack, that sea transportation to the actual battle areas will con- 
tinue to be militarily necessary in order to maintain a flow of troops and 
supplies. Merchant ships engaged in such transportation could reasonably 
be regarded as subject to attack without warning. Since these merchant 
ships are participating in the war or hostilities, they should be deemed to 
be lawful objects of attack without warning under the Protocol. All mer- 
chant ships would, of course, be exempt from such attack if the major 
belligerents agreed, either expressly or by implication, only to regard 



238 See Kuenne 177-92. 

239 See the text accompanying note 1 20 supra. 



148 

regular warships as the objects of attack without warning. If this were to 
be done, it would be a significant indication that the war was to be kept 
limited. 240 

2. Claims by Minor Powers in Limited War 

In this type of limited war it is also possible that the enemy commerce 
at sea would not be a particularly important object of attack. In addition, 
there are other factors which can be expected to be especially effective as 
to minor powers. Such powers will probably not acquire the expensive and 
efficient nuclear attack submarines in the near future. The relative military 
inefficiency of their submarines in comparison with nuclear submarines 
may cause them to limit the scope of the objects of attack and the severity 
of the methods of attack. The particular objects of attack which are se- 
lected by minor powers should be influenced by their restricted military 
capabilities. There is little point in proclaiming enemy merchant ships to 
be objects of attack without warning if there is an inadequate submarine 
capability to carry out such attacks. 

In this type of war the dangers of escalation from sinking without warn- 
ing should also be considered. Further, if neutral merchant ships are sunk 
without warning as a result of errors in identification it could lead to 
possible further military involvement by a minor power which may be 
already involved near the limits of its military capability. It may be ex- 
pected also that minor powers must take into consideration the interests 
of major powers which are not participants in the war. The common 
interests of the world community would be served effectively if the major 
powers indicated as overriding interest in restricting the war or hostil- 
ities. 241 

It has been suggested that there are some situations remote from the 
well-traveled sea lanes where the protection of the Protocol can be extended 
to merchant ships during a general war. 242 Such situations should certainly 
exist in a limited war between major powers, and there should be even 
more opportunities to apply the Protocol in a limited war between minor 
powers. The principal reason for this conclusion is that such a war may 
well present a number of fact situations in which merchant ships are not 
participating in the war or hostilities. In a situation involving a single 
merchant ship the tactical context may permit, and even obligate, a sub- 
marine to comply with all the requirements of the Protocol applicable to 



240 See generally Cagle, "Sea Power and Limited War," 84 Nav. Inst. Proc. No. 7, 
p. 23 (1958). 

241 The role of the United States and the Soviet Union in the Anglo-French-Israeli 
invasion of the Sinai-Suez area is regarded as an example of the point made in the 
text. See Campbell, Defense of the Middle East: Problems of American Policy 109 
(Rev. ed. 1960). 

243 See the text accompanying note 120 supra. 



149 

merchant ships which are not participating in the war or hostilities. In 
such situations the submarine commander would be required to make an 
evaluation of the particular case, considering its tactical context and bal- 
ancing and applying the principles of military necessity and humanity. 
The fact that such individualized evaluations were not feasible in the 
World Wars is not a persuasive reason to fail to attempt them in the 
different contexts of some limited war situations. 

Finally, the obligations to survivors in this type of limited war, as well 
as in one between major Powers, should be emphasized. Aside from situa- 
tions of urgent military necessity of the kind referred to by Admiral 
Nimitz 243 which are more typical of general war situations, a legal obli- 
gation should be recognized to put personnel in a place of safety before 
sinking or, at the least, to rescue survivors after sinking and accord them 
status as prisoners of war or as protected persons. 244 



243 See the text accompanying note 191 supra. 

244 Geneva Convention Relative to the Treatment of Prisoners of War, art. 4 
(1949) ; Geneva Sea Convention, art. 13. 



CHAPTER V 

CLAIMS CONCERNING LAWFUL WEAPONS OF 
BELLIGERENT ATTACK 

The chapters of the present study appraising the claims and counter- 
claims concerning combatants, areas of operation, and objects and methods 
of belligerent attack each considered subject matter which is highly special- 
ized in terms of submarines and submarine warfare. Modern submarines, 
however, do not possess completely distinctive weapons. The traditional 
gunnery, torpedo, and mine weapons of submarines which employ non- 
nuclear explosives are also used by surface warships. In the same way, the 
nuclear and thermonuclear weapons, or substantially similar ones, which 
are employed by modern attack and missile submarines may also be used by 
other combatant units including surface warships, military aircraft, and 
land- or space-based launching systems. 1 

A consideration of the law applicable to submarines must necessarily 
include a juridical appraisal of the weapons which these warships are cap- 
able of using. This is a matter of particular urgency in connection with 
the contemporary "weapons of mass destruction." 2 The existence of 
such weapons has changed the quoted phrase from a figure of speech to 
a fact. 

A. THE HISTORIC EXPERIENCE CONCERNING THE ABOLI- 
TION OR LIMITATION OF WEAPONS 

Although international law has not been particularly successful in abo- 
lishing or controlling weapons of war in the past, it is nevertheless essential 
to have an awareness of the historic experience. It should provide mean- 
ingful background to the contemporary attempts to achieve juridical con- 



1 The nuclear and thermonuclear weapons of modern submarines are surveyed 
in the text of Ch. I accompanying notes 39-43. For a prescient prediction of the 
offensive capabilities of modern submarines see Bush, Modern Arms and Free Men 
68-70 (1949). Concerning space-launching systems see infra note 30. 

2 Such weapons are regarded as including biological, chemical, and nuclear ones. 
See generally Dept. of Defense, The Effects of Nuclear Weapons (rev. ed. 1962); 
Dept. of the Army, Chemical, Biological and Radiological Operations (FM 3-5; 
1961). 

151 



152 

trol of weapons. 3 This history should indicate, at the least, that modern 
problems concerning this subject are not entirely novel. 

In early warfare, knights had substantial military advantages over pea- 
sant soldiers. Dr. Royse states that, prior to the introduction of the cross- 
bow, "not a single knight would be killed in a battle, due to the heavy 
protecting armour." 4 When the crossbow came into use, it appeared to 
be a terrible and indiscriminate weapon of destruction since it could be 
used to kill mounted knights as well as humble foot soldiers. 5 The Second 
Lateran Council of the Roman Church (1139) prohibited the use of the 
crossbow and described it as a weapon which was "hateful to God and 
unfit for Christians." 6 In spite of this formal interdiction, the crossbow 
remained in general military use until more efficient weapons employing 
gunpowder replaced it. Dr. Royse has summarized the result of this ad- 
vance in weapons technology : 

Powder and firearms in early times were also cursed as the devil's 
implements, and the Chevalier Bayard, fatally wounded in 1524 by 
a bullet, found some satisfaction in the thought that he had never 
given quarter to a musketeer. There was no pause, however, in the 
use of explosives and firearms. 7 

The principal limitation upon weapons stated by Hugo Grotius in 1625 
in his classic study of The Law of War and Peace was the prohibition of 
the use of poison. 8 He stated that this prohibition existed "from old times." 9 
It probably reflected the inefficiency of poison as a weapon. The Grotian 
interdiction was formulated in broad terms so as to include poisoning food 
and water as well as using weapons the points of which were tipped with 
poison. 10 The contemporary prohibition is stated in the Regulations 
Annexed to Hague Convention IV (1907) and prohibits the employment 
of "poison or poisoned weapons." 1X Neither of these is likely to be efficient 
in modern war but they are probably still employed upon occasion by 
guerrilla and tribal military forces. 

The Declaration of Paris (1856) has been examined in the considera- 



3 See e.g. Sixth Annual Report of the U.S. Arms Control and Disarmament 
Agency, H.R. Doc. No. 58, 90th Cong., 1st Sess. (1967); U.S. Arms Control and 
Disarmament Agency, Documents on Disarmament 1965 (1966). 

4 Royse 166 (footnote omitted). 

5 Royse 166. The crossbow was a leveler since it deprived knights of their prior 
status of "equal but . . . more equal." See Orwell, Animal Farm 148 (1946). 

8 Royse 166; see also Nussbaum, A Concise History of the Law of Nations 18 (rev. 
ed. 1954). 

7 Royse 167 (footnotes omitted). 

8 Grotius, De Jure Belli ac Pads Libris Tres, Bk. Ill, Ch. 4, sections 15-16, 2 
Classics of International Law 651-53 (Kelsey transl. 1925). 

9 Id. at Ch. 4, section 15, p. 652. 

10 Id. at Ch. 4, sections 15-16, pp. 651-53. 

11 Art. 23(a). 



153 

tion of the traditional law of naval warfare. 12 Its first article provided 
for the abolition of privateering. In spite of the abuses connected with 
privateering which sometimes made it very similar to piracy, 13 the United 
States refused to accede to the Declaration. In his Message to the Congress 
of December 2, 1856, President Pierce stated: 

The aggressive capacity of great naval powers would be thereby 

[through the abolition of privateering] augmented, while the defensive 

ability of others would be reduced. 14 

The Declaration of St. Petersburg (1868) 15 prohibited the use of 
projectiles or bullets of a weight below 400 grammes (approximately 
fourteen ounces) which were explosive or which contained "fulminating 
or inflammable substances." 16 At the time of the Declaration, such bul- 
lets would have caused more serious wounds and a greater probability 
of death to troops against whom they were used than would the non- 
explosive bullets then in use. After the development of flying vehicles for 
military purposes, it became apparent that such projectiles had great 
military efficiency and they have been used in aerial warfare starting with 
the First World War. 17 

The Hague Conferences of 1899 and 1907 have been examined from 
the standpoint of the combatant status of submarine warships. 18 Another 
significant aspect of the Conferences concerns the treatment of aerial 
bombardment. This subject is particularly suitable for brief examination 
here because the strategic bombardment capability of the modern fleet 
ballistic missile submarine is one contemporary method of conducting 
aerial bombardment. 

Although the 1899 Conference was not successful in "abolishing" sub- 
marines, it produced a Declaration concerning aerial bombardment which 
provided : 

The Contracting Powers agree to prohibit, for a term of five years, 

the launching of projectiles and explosives from balloons, or by other 

new methods of a similar nature. 19 

The balloon had not been used for the launching of projectiles or explo- 
sives although it had been employed in war for purposes of observation. 
Neither the free nor the captive balloon could be controlled in a way 
which made it likely to be an efficient bombing instrumentality. Con- 



u The Declaration is set forth in the text of Ch. IV accompanying note 32. 
u Colombos 471-72. 

14 1 Savage, Policy of the United States Toward Maritime Commerce in War 
394, 395 (Dept. of State 1934). 

15 Text in 2 Dept. of the Army, International Law 40 (Pamphlet 27-161-2; 1962). 
19 Ibid. Larger explosive or shrapnel projectiles were not prohibited. 

"Royse 144. 

18 See the text of Gh. II accompanying notes 1 1-24. 

u 2 Scott 153. 



154 

sequently, its use could be prohibited for a time without imposing a mili- 
tary detriment upon any of the major powers. These considerations were 
persuasive in bringing about the unanimous vote for a temporary inter- 
diction of it as an instrument of aerial bombardment. 20 

The "other new methods of a similar nature" referred to in the Dec- 
laration were of particular significance. Since the Wright brothers' 
heavier- than-air flight experiments were not successful until 1903, it seems 
probable that this reference to new methods concerned lighter-than-air 
dirigibles. The interdiction of aerial bombardment proposed by Russia 
had been at a time when Russian dirigible efforts had failed but experi- 
ments conducted by other states were being successful in varying degrees. 21 
Since the dirigible could be maneuvered and controlled, except in un- 
favorable weather conditions involving high winds, it could probably 
become an efficient aerial bombing vehicle. This prospective technical 
improvement in dirigibles was the principal reason for changing the 
original Russian proposal of permanent interdiction to a five-year term. 22 
During the five-year period, there was no inhibition upon further experi- 
ments with dirigibles and the matter of "new methods" of aerial bombing 
could be considered again after the expiration of the term in 1904. 

The Hague Conference of 1907 met in an atmosphere which was not 
conducive to the restriction of efficient weapons. 23 In addition, substantial 
technical improvements had been made in dirigibles. 24 A number of the 
major European military powers had such "airships" in use. In Germany, 
the famous Count Zeppelin was demonstrating their technical capabilities. 25 
France had an airship program second to none. 26 Although it had no 
actual wartime experience to its credit, it was becoming clear that the 
dirigible airship had significant military potential. Like the balloon, it 
had a weight-lifting ability but it had the added advantage of being able 
to direct its bombs to a particular military objective. The airship's then 
relatively great altitude capability and the lack of antiaircraft guns and 
other surface-to-air weapons made it almost immune from ground attack. 
It should also be mentioned that the heavier-than-air airplane was in 
such a primitive stage of development that its subsequent effectiveness as 
an antiairship device was not then foreseen. 

In the military context just described, the minor military powers joined 
with Great Britain in favoring a renewal of the 1899 ban on aerial bom- 



20 1 id. 654. 
21 Royse 39. 
23 Id. at 40. 

23 Id. at 54-55. 

24 Id. at 56-59. 

25 Id. at 63-64. 
28 Id. at 67-68. 



155 

b&rdment. 27 The British correctly foresaw the de facto end of their mili- 
tary advantages based on their geographical situation as an island, and 
the smaller powers with comparatively inadequate scientific capabilities 
recognized that the major powers would quickly achieve superiority in 
airships. The continental powers, and in particular France and Germany, 
were eager to retain and improve the airship. 28 The result was that no 
limitations were placed upon aerial bombardment. 

The lack of restrictions upon aerial bombardment at the 1907 Confer- 
ence gave at least some indication that the airship and the heavier-than-air 
aircraft would be accorded status as lawful combatant units in future war 
or hostilities. Such status was subsequently established beyond any doubt. 29 
As shown in Chapter II, the lawful combatant status of the submarine 
warship has been firmly established after a long decisional process. Thus 
in the present century combatant units which have been found to function 
with military efficiency in relatively new warfare environments, the air 
and under the sea, have been accorded lawful status. 30 

Dr. Royse has accurately summarized the results of attempted weapons 
limitation at the Hague Conferences. 

Such destructive weapons, for instance, as the high explosive shell, the 
shrapnel, mines or torpedoes, were retained as legitimate means of 
warfare, whereas the inefficient expanding and explosive bullets 
were condemned along with the perfectly useless free balloons. The 
proceedings of the Hague Conferencefs] demonstrate rather that a 
weapon will be restricted in inverse proportion, more or less, to its 
effectiveness; that the more efficient a weapon or method of warfare 
the less likelihood there is of its being restricted in action by rules of 
war. 31 

Unfortunately, this analysis does not provide a realistic basis for a favor- 
able prediction concerning present and future weapons abolition or limi- 
tation. The tremendous capabilities of modern weapons of mass destruc- 
tion, however, make the objective of their effectively sanctioned abolition 
much more urgent now than was weapons abolition at the time of the 
Hague Conferences. Until this objective is reached the juridical control 
of such weapons remains a vital goal. 32 



27 Id. at 59, 66. 

38 Id. at 67. 

29 Spaight 76-107 considers the "combatant quality" or status of aircraft. 
"Objects" carrying weapons in space are prohibited by art. 4 of the United 
Nations draft Treaty on Principles Governing the Activities of States in the Explora- 
tion and Use of Outer Space, Including the Moon and Other Celestial Bodies. Text 
in 55 Dept. of State Bull. 952, 953 (Dec. 26, 1966). 

31 Royse 131-32. 

33 See the recommendation concerning disarmament in the Preface to this study. 



156 

B. CLAIMS CONCERNING WEAPONS OF ATTACK IN 
GENERAL WAR 

In appraising juridical control of weapons of attack it is necessary to 
distinguish between the claims concerning the legality of particular weap- 
ons per se and the related claims concerning the legality of the use of the 
weapons. It is clear that a weapon (or a combatant unit) otherwise legal 
can be employed in an illegal manner. 33 

It is probably accurate to state that the juridical criteria which has 
been developed to determine the lawfulness of particular weapons is based 
upon both the principles of military necessity and of humanity. 34 In the 
application of this criteria, however, the principle of humanity is usually 
considered only after the principle of military necessity is given controlling 
weight. The result is, in general, that only weapons which cause destruc- 
tion and injury which is unnecessary for the attainment of military objec- 
tives are deemed unlawful. 

Professor Hyde stresses the role of military decision in stating the "under- 
lying legal principle" in determining the lawfulness of weapons: 

The task of specification is primarily a military rather than a legal 
one, calling for technical opinion whether the blows to be inflicted 
by new instrumentalities such as those designed and employed in the 
course of World War I possess a military value which outweighs in 
significance the severity and magnitude of the suffering caused by 
their use and likely to be incidentally felt by non-combatants. 35 
In a comparable formulation of the basic criteria, Professor Garner 
states : 

The employment of new and powerful inventions of destruction or 
of new methods is, of course, not to be condemned and ruled out 
merely because they are new or because they are more effective than 
those formerly employed, as a few sentimentalists in every age have 
wished to do. The true test of their lawfulness is rather whether they 
can be employed without inflicting superfluous injury upon those 
against whom they are employed, whether they "uselessly aggravate 
the sufferings of disabled men," whether their effect is cruel and in- 
humane, and the like. 36 

Dr. Spaight has also set forth the same accepted criteria in an unusually 
blunt formulation: 

It is really by its fruits that the engine of war is judged. The test 



33 The appraisal in Ch. II, for example, was restricted to the submarine's com- 
batant status and left open the issues relating to the lawfulness of its various uses. 

34 Dr. Royse refers to the same principles functionally as "utilitarian grounds" and 
"social sanction." Royse 137 and passim. 

35 Hyde 1814. 

38 1 Garner 282. Prof. Garner argued the unlawfulness of particular uses of German 
submarines in World War I but did not question their lawful combatant status. Id. 
at 355-83. 



157 

of lawfulness of any weapon or projectile is practically the answer 
one can give to the question — What is its "bag"? Does it disable so 
many of the enemy that the military end thus gained condones the 
suffering it causes? 37 

The criteria for a weapon to meet the test of lawfulness may be sum- 
marized by stating that it must not cause a destruction of values which 
is disproportionate to the military advantage gained through its use. 38 
The historical experience in applying the criteria appears to indicate that 
weapons will be upheld as lawful except where there is a great disparity 
between the ensuing destruction of values and the military advantage 
gained. An obvious example of illegal weapon use would be a delayed 
action bomb which is dropped by an aircraft during the war but explodes, 
killing and wounding civilians, after the war has ended. 

Conventional rules elucidate, but do not appear to change, the custom- 
ary law criteria stated by the writers. The Regulations Annexed to Hague 
Convention IV (1907), for example, provide that it is especially forbidden 
"to employ arms, projectiles, or material calculated to cause unnecessary 
suffering." 39 Since it is clear that the use of all efficient weapons of war 
causes human suffering, this conventional rule should be interpreted rea- 
sonably as prohibiting only that suffering which is "unnecessary" in relation 
to the military advantage derived from the use of the weapon. The U.S. 
Army's official publication on land warfare law provides helpful inter- 
pretation : 

What weapons cause "unnecessary injury" can only be determined 
in the light of the practice of States in refraining from the use of a 
given weapon because it is believed to have that effect. 40 
There is little or no indication in "the practice of States" that efficient 
weapons which bring substantial net military advantage of their belligerent 
users have not been used because of ancillary injury and suffering caused 
to the enemy belligerent. In the instances where efficient weapons have 
not been used it is probable that other reasons have existed such as the 
potential threat of the use of the same weapon by the enemy and con- 
sequent doubts as to its net military advantage.- 



41 



1. Traditional Naval Weapons 

The appraisal under the present heading examines the lawfulness 
of traditional weapons and excludes consideration of weapons with mass 
destruction capabilities. Early naval warfare often involved the maneuver- 



37 Spaight, War Rights on Land 76-77 (1911). 

38 See the statement of the test by Prof. McDougal and Dr. Feliciano quoted in the 
text accompanying infra note 128. 

39 Art. 23(e). Art. 22 of the same Regulations provides this general admonition: 
"The right of belligerents to adopt means of injuring the enemy is not unlimited." 

40 Law of Land Warfare paragraph 34(b). 

41 E.g. the nonuse of gas weapons in combat in World War II. 



158 

ing of warships with the object of boarding enemy vessels and capturing 
them through procedures which included hand-to-hand combat. 42 An 
interesting early form of chemical weapon for use in naval warfare, "Greek 
fire," was invented about 600 B.C. 43 Its significant characteristic was that 
it burst into flames spontaneously upon contact with water. Apparently 
the destruction of values involved in its use was not considered dispropor- 
tionate to its efficiency. 

Guns, torpedoes, and mines are among the most traditional naval 
weapons which are still in use and they have been employed by surface 
and submarine warships alike. 44 Their legality appears to have been simply 
assumed rather than argued. The muzzle loading naval gun dealt terrible 
destruction to the opposing enemy in the days of sailing warships, but its 
efficiency apparently justified it juridically. It is well known that the naval 
gun and its projectiles have been greatly improved in range, accuracy, 
and destructive power in the present century. Thus the long-range guns 
firing projectiles weighing about one ton which were used at Jutland and 
at Surigao Strait destroyed enemy capital ships and killed and wounded 
enemy personnel. No question was raised concerning their lawfulness. Had 
such questions been raised, they would have been rejected because of the 
undoubted military efficiency of the guns. 

The torpedoes which were immortalized by Admiral Farragut at Mobile 
Bay were stationary explosive devices. 45 Hague Convention VIII (1907) 
recognized generally the lawful status of self-propelled torpedoes by for- 
bidding the use of such torpedoes which "do not become harmless when 
they have missed their mark." 46 In both World Wars torpedoes were 
high-speed devices with high-explosive warheads which could be accurately 
aimed at the selected object of attack. They constituted the principal 
armament of submarines and their legality as weapons was not chal- 
lenged. 47 During the Second World War the Japanese developed and used 
a much larger and more efficient torpedo than those generally in use at 
the time. It was termed a "Kaiten" or "long lance torpedo" and may be 
described accurately as either a large torpedo or a small submarine manned 
by a single crewman who guided the device to the target and was killed 



42 See Potter & Nimitz 1-20. 

43 Report of the House Committee on Science and Astronautics, Research in CBR 
(Chemical, Biological, and Radiological Warfare), H.R. Rep. No. 815, 86th Cong., 
1st Sess., 3 (1959). 

44 The naval aspects of weapons considered in the textual paragraph are based 
upon Potter & Nimitz passim. 

45 The words attributed to the Admiral are: "Damn the torpedoes! Full steam 
ahead!" The Admiral stated that he sought guidance through prayer. Potter & 
Nimitz 320. 

48 Art. 1, paragraph 3. The text of the Convention is in 2 Scott 428. 
47 The lawfulness of some of their selected objects of attack was, of course, chal- 
lenged as indicated in Ch. IV passim. 



159 

in the ensuing explosion. 48 Even though it carried a larger explosive 
charge and created greater destruction than smaller torpedoes, its law- 
fulness was assured because its destructiveness was not disparate in relation 
to its military efficiency. By the same reasoning, the British midget sub- 
marines or "X-craft" which carried out successful attacks upon the German 
battleship Tirpitz 49 are lawful whether they are regarded as weapons or 
as submarine combatant units. 

The military efficiency of the automatic sea mine was demonstrated 
during the Russo-Japanese War shortly before the opening of the Hague 
Conference of 1907. 50 The British delegation to this Conference initially 
proposed a total interdiction against the use of unanchored mines but 
later retreated to a more moderate position and, although expressing grave 
doubts about it, 51 adhered to the ensuing Convention. The German delega- 
tion regarded the mine as a necessary and efficient instrument of warfare. 52 
Hague Convention VIII provides in part: 

It is forbidden to lay automatic contact mines off the coast and 

ports of the enemy, with the sole object of intercepting commercial 

shipping. 53 

It was always possible, of course, for a belligerent employing mine 
warfare to claim that the mines were laid for additional purposes beyond 
that of intercepting commercial shipping. The ineffectiveness of the con- 
ventional provision was demonstrated by the experience in both World 
Wars where mines caused great destruction of human and material values. 
Mines were scattered off enemy coasts and were systematically employed 
in minefields and mine barrages. 54 The most notable example of the latter 
was the great North Sea Mine Barrage laid by the United States which 
has been referred to previously. 55 Mines were also employed in both World 
Wars as an ancillary method of enforcing submarine operational areas. 

Hague Convention VIII provides further that anchored automatic con- 
tact mines must be so constructed as to become harmless when they have 
broken from their moorings 56 and that similar unanchored mines must 
be constructed so as to become harmless within an hour of their launch- 



48 The technical statements concerning the "Kaiten" are based upon Yokota & 
Harrington, Suicide Submarine! (1962); Yokota & Harrington, "Kaiten — Japan's 
Human Torpedoes," 88 Nav. Inst. Proc. No. 1, p. 55 (1962). 

49 Factual description appears in Wilkinson, "Tirpitz Tale," 80 Nav. Inst. Proc. 
375 (1954). 

50 Potter & Nimitz 354. 

51 1 Scott 581, 585-86. 

52 Id. at 586-87. 

63 Art. 2. 

64 See e.g. Potter & Nimitz 456, 470. 

55 See the text of Ch. Ill accompanying note 62. 
68 Art. 1, paragraph 2. 



160 

ing. 57 It is clear that the military efficiency of uncontrolled mines which 
are drifting about is doubtful since they might do substantial harm to the 
launching belligerent as well as to the enemy belligerent. There is no doubt 
that drifting mines subjected neutral shipping to hazards and damage 
which continued after the conclusion of active hostilities. 58 This continu- 
ing sea-mine danger in time of peace demonstrated violation of these 
conventional law doctrines. 

Sea mines, like other traditional naval weapons, have undergone con- 
tinuing technical improvement. In the Second World War acoustic and 
magnetic mines, among other types, were employed. 59 None of these 
technological improvements have deprived sea mines of their status as 
lawful weapons since their increased destructiveness is not disproportionate 
to their military efficiency. 

2. Traditional Naval Bombardment 

Surface warships are the typical vessels which conduct traditional 
bombardment but submarines with deck-mounted guns have a bombard- 
ment capability. 60 The conventional rules concerning naval bombardment 
of objects of attack located upon land are formulated in Hague Conven- 
tion IX Respecting Bombardments by Naval Forces in Time of War 
(1907). 61 The first article prohibits the bombardment by naval forces 
of undefended places. Article 2, however, provides for a substantial modifi- 
cation of the prohibition : 

Military works, military or naval establishments, depots of arms or 

war materiel, workshops or plant which could be utilized for the 

needs of the hostile fleet or army, and the ships of war in the harbor, 

are not, however, included in this prohibition. 62 

Thus, military objectives could be bombarded lawfully even though located 

in undefended towns and ports. In bombarding such undefended locations 

the naval commander was required to "take all due measures in order 

that the town may suffer as little harm as possible." 63 In summary, these 

conventional doctrines embody the test of the lawful military objective 

which is based upon the primacy of factors of military efficiency. The 



57 Art. 1 j paragraph 1 . 

58 Reference is made to such hazards following the Russo-Japanese War in 6 
Hackworth 503. 

59 Roskill 47-48, 117, 379. 

60 The tjiree largest pre-World War II U.S. Navy submarines, the Argonaut, 
Narwhal, and Nautilus, each mounted two 6-inch guns (the same size typical 
of light cruisers). Parkes (ed.), Jane's Fighting Ships 1934 493. Shore bombard- 
ment by the Nautilus during World War II is described in Potter & Nimitz 799. 

61 Text in 2 Scott 436. 

62 Art. 2, paragraph 1. 

63 Art. 2, paragraph 3. 



161 

humanitarian factors involved in the concept of "undefended places" are 
given, at best, subordinate consideration. 

Since Hague Convention IX did not specifically provide for the situation 
concerning defended places, it seems clear that even the modest limitations 
upon the naval bombardment of undefended places do not apply to places 
which are defended. In modern combat situations where a coastal state 
has some military air power, it is likely to be assumed that the state is 
defended. 

In the juridical application of Hague Convention IX in both World 
Wars, defended land areas were lawful objects of attack. As a practical 
matter, of course, they could not be bombarded unless they were within 
the range of naval gunfire. 64 If the places on land were undefended, they 
were also lawful objects of attack providing that the military objectives 
referred to in article 2 of the Convention could be identified as targets. 
In this latter situation, harm to the civilian population which was inciden- 
tal to the attack upon the lawful military objective was not prohibited. 
During the Second World War in both the Pacific and European theatres 
Allied naval gun power was employed as an effective part of the great 
amphibious attacks upon enemy-defended locations. 65 

3. Biological and Chemical Weapons 

The principal weapons of the fleet ballistic missile submarine are 
Polaris missiles with the capability of carrying warheads containing either 
traditional explosives or nuclear or thermonuclear explosives. 66 Since these 
are the typical weapons, they may be regarded mistakenly as the only wea- 
pons of these submarines. General Rothschild, however, has written: 

As far as missiles are concerned, it is obvious to anyone with an 
acquaintance with toxic munitions, and who has seen a picture of 
a Polaris, that it could carry biological, and possibly chemical, 
agents. 67 

Chemical warfare and biological warfare have been defined as follows: 

Chemical warfare is the intentional employment of toxic gases, 
liquids, or solids to produce casualties, and the use of screening smoke 



64 For example, the U.S.S. Colorado, a battleship which participated in ten major 
amphibious operations in the Pacific War, had a main battery of eight 16-inch guns. 
These guns had a maximum range of 33,300 yards. Parkes, op. cit. supra note 60 
at 467. 

65 See Potter & Nimitz 745-48 and passim. 

66 These weapons are described in the text of Ch. I accompanying notes 39-40. 

87 Rothschild, Tomorrow's Weapons: Chemical and Biological xiv (1964). Prior 
to his retirement, General Rothschild was Commanding General, U.S. Army Chemi- 
cal Corps Research and Development Command. Id. at xi. The same writer refers 
also to other U.S. Navy chemical warfare capabilities. Id. at 78. 



162 

or incendiaries. Biological warfare is the military use of living orga- 
nisms or their toxic products to cause death, disability, or damage 
to man, his domestic animals, or crops. 68 

An unusual feature of a biological weapon is that its first impact is 
designed to lead to successive ones. 69 Thus, a germ weapon which leads 
to a mass epidemic is like fire in that it is self-propagating. It is also like 
fire in that it does not distinguish between belligerent users of the weapon, 
the opposing belligerents, and neutrals among its victims. It is probably 
much less subject to effective military control by its belligerent user than 
is fire. Because of this, it is necessary to question the net military advantage 
to the belligerent user of a weapon which may inflict devastating injury 
upon friend and foe alike. While such biological weapons may be "efficient" 
in the sense of causing indiscriminate mass destruction, that efficiency 
which is relied upon as a factor in establishing the lawfulness of a weapon 
is military efficacy in the controlled destruction of lawful military objec- 
tives. In addition, it is clear that weapons which make civilians direct 
objects of attack are unlawful. 70 

The Hague Conference of 1899 agreed to a Declaration concerning 
chemical warfare which provided : 

The Contracting Powers agree to abstain from the use of projectiles 
the object of which is the diffusion of asphyxiating or deleterious 
gases. 71 

The gases referred to are now recognized to be but a part of the com- 
prehensive arsenal of chemical warfare. At the time the Declaration was 
adopted there had been no adequate experimentation much less use, con- 
cerning gas shells, and the action of the Conference, consequently, was 
taken without knowledge as to whether the destructiveness caused by gas 
shells would be in excess of that necessary to attain a lawful military ob- 
jective. Captain Mahan has indicated the inadequacy of the knowledge 
on the subject. 72 

The military effectiveness of poison gas was demonstrated during the 
First World War. 73 Even though this chemical weapon presents some of the 
same problems concerning indiscriminate destruction as do biological weap- 
ons, it seems probable that chemical weapons are more controllable than 
biological ones. 



68 Op. cit. supra note 43 at 3. 

89 See e.g. the hypothetical biological warfare attack upon the United States where 
the weapons are assumed to be launched from submarines. It is described in the 
[Washington] Evening Star, Feb. 9, 1967, A-12, cols. 1-7. 

70 See the criteria quoted in the text accompanying infra note 128. 

71 Text in 2 Scott 155. 

72 Scott (ed.), The Proceedings of the Hague Peace Conferences: The Conference 
of 1899 283 (1920). 

73 Op. cit. supra note 43 at 3-4. 



163 

In initiating the use of gas in land warfare in 1915 Germany avoided 
the precise wording of the Hague Declaration by disseminating the gas 
through canisters fixed to the ground with favorable wind conditions being 
relied upon to direct the gas against the enemy. 74 The Allied Powers 
retaliated in kind, and before long gas attacks were carried out by the use 
of cylinders and bombs as well as by the projectiles forbidden by the 
Hague Declaration. 75 In addition to the claims of legal right, reprisals 
were invoked by both sides. 76 By the end of the war gas attacks were in 
common use, although regarded with considerable reprobation except 
when used against the enemy. 77 

At the end of World War I gas weapons were abolished for the defeated 
powers. The Treaty of Versailles with Germany, for example, provided 
in relevant part: 

The use of asphyxiating, poisonous or other gases and all analogous 

liquids, materials or devices being prohibited, their manufacture and 

importation are strictly forbidden in Germany. 78 
Similar prohibitions were placed in the other peace treaties. 79 

The principal attempt to abolish gas as a weapon is set forth in the 
Geneva Protocol for the Prohibition of the Use in War of Asphyxiating, 
Poisonous or other Gases, and of Bacteriological Methods of Warfare 
(1925). 80 This Gas Protocol, using language substantially identical to that 
in the unratified Washington Treaty in Relation to the Use of Submarines 
and Noxious Gases in Warfare (1922), 81 provides: 

Whereas the use in war of asphyxiating, poisonous or other gases, 

and of all analogous liquids, materials or devices, has been justly 

condemned by the general opinion of the civilized world . . . 82 
The parties to the Gas Protocol agreed to "accept the prohibition" and 
also agreed "to extend this prohibition to the use of bacteriological meth- 
ods of warfare. . . ." 83 Most of the great powers, except the United 
States and Japan, became parties to the Gas Protocol. 



74 1 Garner 272. 

75 Id. at 272-73. 
78 Id. at 273. 

77 The propaganda and psychological attitudes of the time concerning the use of 
gas, and submarines as well, are described in Lasswell, Propaganda Technique in 
the World War 111-12 (1927). 

78 Art. 171. 

79 The Treaty of St. Germain with Austria, art. 135 ; the Treaty of Trianon with 
Hungary, art. 119; the Treaty of Neuilly with Bulgaria, art. 82; the Treaty of 
Sevres with Turkey, art. 176. The cited treaties appear in 1 & 2 Carnegie Endow- 
ment for International Peace, The Treaties of Peace 1919-1923 (1924). 

80 Text in 3 Hudson, International Legislation 1670 (1931). 

81 Art. 5. Text in Wash. Conf. 888. 

82 Op. cit. supra note 80 at 1671. 

83 Ibid. The Gas Protocol does not provide for any inspection procedures. 



164 

There is convincing evidence that Fascist Italy used gas warfare against 
primitively armed tribesmen during the attack upon Ethiopia. 84 There is 
also evidence that Japan used it from time to time against the Chinese. 85 
It is usually stated that gas warfare was not employed during the Second 
World War. This statement is accurate if it is interpreted as restricted to 
the use of gas in combat situations. During the war, President Roosevelt 
indicated that the United States would not employ gas warfare unless it 
was first used by the Axis Powers. 86 Since both sides had a substantial 
chemical warfare capability, it is probable that the Axis Powers could not 
foresee a net military advantage in using gas. The result was an effective 
deterrence of the use of gas weapons 87 not unlike the present deterrence 
of the use of nuclear weapons. 

The Nazi murder of millions of innocent men, women, and children 
is one of the most terrible and tragic events in history. It is well known 
that poison gas was one of the principal weapons used in perpetrating 
these crimes against victims who were regarded as "inferior" in the Nazi 
ideology. The reports of the various war crimes tribunals are replete with 
the details of these atrocities. 88 

Chemical and biological weapons, along with nuclear ones, comprise 
the principal instruments of mass destruction in the contemporary arsenal 
for total war. The nerve gases, developed by Germany during the Second 
World War, are among the most significant in the current chemical war- 
fare stockpiles. 89 They include Tabun (GA) and Sarin (GB). Less than 
a minute of exposure to either of these gases is fatal and casualties are 
created before the presence of the gas can be detected. 90 They penetrate 
the body mechanism either through inhalation or by liquid drops which 
enter through the skin and disrupt nerve signals to the muscles. 91 

It may not be assumed accurately that the chemical and biological 
arsenal only comprises weapons of lethal characteristics. It also includes 
weapons which are only temporarily disabling. A riot-control device such 



84 Op. cit. supra note 43 at 4. 

85 Ibid. 

86 See 8 Dept. of State Bull. 507 (1943). 

87 Prof. Schelling regards the nonuse of gas in World War II as enforced by the 
threat of reciprocal use: Arms and Influence 131 (1966). 

88 See e.g. 1 I.M.T. 251-53; United States v. Ohlendorf ("The Einsatzgruppen 
Case"), 4 Trials of War Crims. 1, 199, 213; United States v. Brandt ("The Medical 
Case"), 1 Trials of War Crims. 1, 314-54 (this case involved "medical' 'experiments 
with gas used upon the victims); The Zyklon B Case ("Trial of Tesch"), 1 Reps. 
U.N. Comm. 93. 

89 Op. cit. supra note 67 at 32-35. 

90 Op. cit. supra note 43 at 6. 

91 Ibid. Description of the clinical symptoms appear in ibid. 



165 

as tear gas is a well-known example. 92 Whether in a general war or in 
a limited one, it is obviously more humanitarian to disable guerrilla troops 
who are located in a cave or a similar position by the use of tear gas rather 
than to incinerate them with a flamethrower. 

General Rothschild recommends the use of gas warfare for humanitarian 
reasons as well as for military ones. Referring specifically to the United 
States amphibious attack upon Betio Island, Tarawa Atoll in 1943, he 
emphasizes the almost complete destruction of the defending Japanese forces 
and the heavy casualties among U.S. Marines. 93 These casualties among 
the attackers took place in spite of the tremendous aerial and gunfire 
bombardment preceding the landing. General Rothschild states that a gas 
warfare attack upon Betio would have drastically reduced both United 
States and Japanese casualties. In his view, many "more [Japanese] proba- 
bly would have lived and recovered Completely, following gas attacks" 
even if mustard gas had been used. 94 He inquires: 

In fighting without toxic [chemical] weapons, then, we are being 
humane to whom? To the Americans who were killed or wounded 
unnecessarily? To the Japanese who were killed almost to a man by 
being burned out of their shelters with flame throwers, or forced out 
with white phosphorous grenades or hand grenades so they could be 
shot? 95 

The sources of the doctrines concerning the control of biological and 
chemical warfare comprise both conventional and customary law. The 
principal conventional source is, of course, the Geneva Gas Protocol ( 1 925 ) 
which prohibits the initial use of biological and chemical warfare between 
the adhering states. A significant issue concerning customary international 
law as a source of relevant doctrines must be considered. Has the Gas 
Protocol been accepted as customary law so that all states, including those 
which did not adhere to it, are now forbidden the initial use of chemical 
warfare? Based upon the substantial nonuse of chemical warfare in com- 
bat situations since the conclusion of the First World War, Professor O'- 
Brien has made a careful argument that there now exists customary law 
binding upon all states which forbids the first use of such warfare. 96 There 



92 A brief description is provided in op. cit. supra note 43 at 6, paragraph 4. 
Defoliation agents come under the heading of chemicals but are harmless to 

humans. 

93 Op. cit. supra note 67 at 4-5. 

94 Id. at 5. 

Ibid. Statistics which indicate a higher rate of survival in World War I among 
troops injured by gas than among those injured by other weapons appear in op. cit. 
supra note 43 at 4, paragraph 1 . 

"O'Brien, "Biological/Chemical Warfare and the International Law of War," 51 
Geo. L.J. 1, 32-36 (1962). 

Prof. Tucker states generally that there is a customary rule prohibiting poison 
gas. Tucker 52. He considers weapons in id. at 50-55. 



166 

is no doubt as to the desirability of this conclusion concerning the existence 
of a comprehensive prohibition based upon the customary law. Unfortun- 
ately, there is serious doubt as to whether or not the nonuse of gas relied 
upon indicates customary lawmaking. It seems more probable that it re- 
flects rather the common conviction of belligerents as to the lack of net 
military advantage in employing chemical weapons in situations where 
these are possessed by both sides. 97 

The Gas Protocol also prohibits the use of "bacteriological methods of 
warfare." 98 It is clear, therefore, that the first use of biological warfare 
is also prohibited as between the adherents to the Gas Protocol. It is rather 
difficult, however, to attempt to make a customary law argument based 
upon the nonuse of biological warfare analogous to that which Professor 
O'Brien has made concerning chemical warfare. One reason is that bio- 
logical warfare has not been used at all. Its nonuse since the Gas Protocol 
in 1925, consequently, cannot be claimed with much conviction to demon- 
strate the development of applicable customary law. The result of this is 
that the first use of biological warfare is prohibited only to the states which 
adhere to the Gas Protocol. 

The contemporary situation may be summarized by stating that there 
is a conventional and possibly also a customary prohibition upon the first 
use of chemical warfare and a conventional prohibition only upon the 
first use of biological warfare. As Professor O'Brien has demonstrated, 
these prohibitions are more apparent than effective." There are convinc- 
ing reasons which support this conclusion of the lack of effectiveness or 
sanction of the prohibitions. For example, there are apparently substantial 
stockpiles of biological and chemical weapons. In addition, there is no 
limitation upon scientific inquiry and development of these weapons in 
the existing doctrines. There are, indeed, no inspection procedures what- 
soever to implement the Geneva Gas Protocol. In this context, peaceful 
states which neglect research and development in biological and chemical 
weapons for both defensive and offensive purposes act at their peril. 100 



07 Prof. O'Brien recognizes some of the considerations stated in the text but he 
regards them as consistent with customary lawmaking in this situation. O'Brien, op. 
cit. supra note 96. 

98 The context of the quoted words is indicated in the text accompanying supra 
notes 82-83. 

99 O'Brien, op. cit. supra note 96 at 55-56. 

100 Description and criticism of such research and development appears in Langer, 
"Chemical and Biological Warfare (I) : The Research Program," 155 Science (pub. 
of the Amer. Assoc, for the Advancement of Science) 174 (Jan. 13, 1967) ; Langer, 
"Chemical and Biological Warfare (II): The Weapons and the Policies," 155 id. 
299 (Jan. 20, 1967). The concern of some scientists about the subject as expressed 
in a petition to President Johnson states, in part: "The employment of any one CB 
weapon weakens the barriers to the use of others." Id. at 302. See also the inserted 
comment entitled "University of Pennsylvania: It's Hard to Kick the Habit." Id. at 



167 

The neglect of such research and development could result in placing the 
most peaceful states in the world community at the mercy of the least 
peaceful ones. 101 

The relevant prohibitions upon the use of biological and chemical war- 
fare extend, as stated above, only to an interdiction of the first use of 
these weapons. This interpretation is required by the availability of the 
doctrines of legitimate reprisal which legalize the use of otherwise unlaw- 
ful weapons in response to the prior use of such weapons. Where a bio- 
logical or a chemical weapon is used illegally in violation of the applicable 
doctrines, it seems clear that the use of these weapons, or either of them, 
in retaliation could be justified juridically as legitimate reprisals. 102 This 
assumes, of course, that the retaliatory use is directed and controlled and 
does not involve militarily meaningless mass destruction. 

4. Nuclear Weapons 

a. THE LAWFULNESS OF NUCLEAR WEAPONS 

In the foregoing subheadings and in the ensuing text the word 
"nuclear" is used broadly to cover both nuclear and thermonuclear weap- 
ons except where a distinction is made between them explicitly or through 
the context. It is a commonplace observation that a nuclear weapon, 
because of its massive destructive capability, is not "just another weapon." 
Such a basic energy weapon involves the very rapid release of a tremendous 
amount of energy within a small space by the fission or fusion of atomic 
nuclei. 103 It is difficult to conceive the force and ensuing damage from 
the resulting explosions which may now be produced. All individuals who 
cherish moral values, and human life itself, must be appalled by the de- 
structiveness of these weapons. A useful explanation in relatively non- 
technical language of the blast and other effects involved appears in the 
latest revision of The Effects of Nuclear Weapons. 1 ®* 

The legal scholar who values human dignity and consensual as opposed 
to coercive procedures has a particular obligation to attempt to advance 
the effective legal control of these weapons. Unless international lawyers 
provide constructive leadership in solving this central challenge of our 



177. The University of Pennsylvania responded to the pressure campaign against 
chemical and biological research contracts with the U.S. Government by giving 
them up. See "Soice Rack and Summit: A Season's Discontent over Classified Re- 
search," 65 Pennsylvania Gazette No. 7, p. 14 (1967). 

101 See generally Stowell, "The Laws of War and the Atomic Bomb," 39 A.J.I.L. 
784 (1945). 

102 See Prof. O'Brien's treatment of reprisals in this context: op. cit. supra note 96 
at 43-49, 58-59. 

03 Nuclear explosions are the result of fission and thermonuclear ones are the 
result of fusion. 

104 U.S. Dept. of Defense, The Effects of Nuclear Weapons (rev. ed. 1962). 



168 

times, the result could be the destruction of human life and social pro- 
cesses on a massive scale. 

The present appraisal focuses narrowly upon the issue of the lawfuless 
of nuclear weapons per se. Subsequent appraisal will conisider the issues 
involved in determining the lawfulness of some of the uses of these weapons. 
Their capability of mass destruction 105 and other characteristics must 
compel humanitarians to wish devoutly that they may be accurately char- 
acterized as illegal. One should not, however, summarily appraise these 
weapons as "unlawful" without consideration of the several relevant issues 
including, for example, the availability of sanctions to make the appraisal 
meaningful. 

Some international lawyers, acting upon humanitarian motives, have 
attempted to declare the existing illegality of nuclear weapons. These 
lawyers have placed heavy reliance upon certain international conventions 
as well as general principles of customary international law. Since the con- 
ventions and principles which are invoked long preceded the existence, 
or even the serious contemplation, of nuclear weapons, the arguments 
to support the claim of illegality must necessarily employ analogy and 
extrapolation. 

The St. Petersburg Declaration (1868) prohibiting the use of weapons 
"which would uselessly aggravate the sufferings of disabled men, or render 
their death inevitable" 106 is one of the conventions relied upon. Another 
conventional formulation which is functionally similar to the first clause 
of the Declaration appears in the Hague Regulations (1907). It especially 
prohibits the use of "arms, projectiles, or material calculated to cause 
unnecessary suffering." 107 Both of these provisions are usually interpreted 
as manifestations of the basic principle requiring a reasonable proportion- 
ality between the military efficiency of the weapon and the ancillary 
destruction of human values. Dr. Singh, however, reasons that even if 
the other destructive effects of nuclear weapons explosions are not con- 
sidered, nuclear radiation combined with the radioactive fallout come 
within the quoted prohibition in the Hague Regulations. 108 Perhaps the 



106 In a single strike, naval aircraft could exceed, by several times, the weapon 
power delivered by more than 204,000 offensive naval air sorties during three 
years of the Korean War. Indeed, on a single modern carrier, in the space of a 
few steps, one could walk about and pat the lethal warheads of weapons whose 
destructive power exceeded all the ordnance the U.S. Navy had exploded in its 
entire history. 

Cagle, "A Philosophy for Naval Atomic Warfare," 83 Nav. Inst. Proc. 249, 251 

(1957). 

Nef, War and Human Progress, 254 (1950) warns against the illusory view that 

more frightful weapons of destruction might impose limits on war. 

106 Text in Greenspan, The Modern Law of Land Warfare 315 (1959) ; 2 Dept. of 

the Army, International Law 40 (Pamphlet No. 27-171-2; 1962). 
1OT Art. 23(e). 
108 Singh, Nuclear Weapons and International Law 150-52 (1959). 



169 

principal inadequacy of this argument is that it does not include a demon- 
stration that the use of these weapons results necessarily in the destruction 
of human values which is out of all proportion to their military efficiency. 
In order to be persuasive, such a demonstration should extend to the 
varying factual contexts of future coercive situations involving the use 
of nuclear weapons including the magnitude of the explosions and the 
character of the objects of attack. 

The second clause of the St. Petersburg Declaration refers to rendering 
the death of disabled men "inevitable." Professor McDougal and Dr. Feli- 
ciano have pointed out that this conventional rule does not prohibit 
weapons which kill as opposed to those which only wound since all weapons, 
including the bow and arrow for example, can under certain conditions 
render death inevitable. 109 Dr. Spaight, however, as one aspect of an 
argument which concludes that nuclear weapons are illegal, suggests that 
this reference is to weapons which have the effect of leaving the wounded 
victim "with no hope of survival." 110 It has been accurately pointed out 
that the presence or absence of "hope of survival" by an individual depends 
upon a number of variables in the specific factual context including the 
gravity of the particular injury and the ready availability of medical ser- 
vices. 111 These factors are operative whether the injuries involved result 
from gunfire, radiation, or other causes. 

Dr. Schwarzenberger, who also places his analysis upon basic humani- 
tarian considerations, has reached the same conclusion that nuclear weap- 
ons are illegal. 112 While he relies upon other rules as well, he puts principal 
emphasis upon the customary and conventional doctrines which prohibit 
the use of poison and poisoned weapons. The "true ratio legis," 113 in his 
view, is that radiation and poison are substantially the same thing. He 
states : 

[A] fairly strong case can be made for the assimilation of radiation 
and radioactive fall-out to poison. If introduced into the body in 
sufficiently large doses, they produce symptoms which are indistin- 
guishable from those of poisoning and inflict death or serious damage 
to health in, as Gentili would have put it, a manner more befitting 
demons than civilised human beings. 114 

Dr. Schwarzenberger is correct, of course, in pointing out that sufficiently 
large amounts of radiation can cause death. It is also true that sufficiently 
large gunshot wounds can produce death. It is not suggested, however, 



100 McDougal & Feliciano 660-61. 

110 Spaight 275, n. 5. 

111 McDougal & Feliciano 661-62. 

113 Schwarzenberger, The Legality of Nuclear Weapons passim (1958) 

113 Id. at 33. 

114 Id. at 35 (footnote omitted). 



170 

that guns should be deemed unlawful weapons of war. Radiation effects 
are usually associated with nuclear explosions but they are regarded as 
ancillary to the principal blast effects. 115 

In an analogy drawn from the prohibition upon the use of poison gas, 
Dr. Schwarzenberger relies upon the Geneva Gas Protocol which, it will 
be recalled, prohibits "asphixiating, poisonous, or other gases" and, in 
addition, "all analogous liquids, materials or devices." Dr. Schwarzenber- 
ger states: 

If the radiation and fall-out effects of nuclear weapons can be likened 

to poison, all the more can they be likened to poison gas which is 

but an even more closely analogous species of the genus "poison." 116 

These interesting analogies and derivations drawn from the use of the 

word-symbols "poison" and "poisonous, or other gases" in earlier and 

different contexts reflect accurately the revulsion which all humanitarians 

share regarding nuclear weapons. The central issue concerning lawfulness 

which must be resolved, however, is whether or not all possible uses of 

nuclear weapons, taking into account the wide variations in the possible 

factual contexts, must always involve disproportionate destruction of 

human values in relation to the military efficiency of the weapons. 

The utility of an analogy drawn from past experience in solving a new 
problem depends, of course, upon whether the fundamental values and 
policies in the analogy are similar to those involved in the new problem. 
The historic and contemporary prohibition upon the use of poison appears 
to be based upon its inefficiency as a weapon. 117 Such an analogy does 
not seem to be particularly helpful in ascertaining the lawfulness of nuclear 
weapons since it does not consider the issue of their efficiency. In the same 
way, the prohibition upon the initial use of poison gas, and its observance 
in combat during the Second World War appear to be based upon sub- 
stantial doubt as to the net military utility where both sides possess the 
weapon. 118 The question as to the net military utility of nuclear weapons 
in different factual contexts raises issues which go beyond the poison gas 
analogy. In addition, nuclear weapons with distinctive characteristics of 
their own are of such importance that they necessitate direct appraisal. 
In view of these fundamental considerations, analogies, even though based 
upon humanitarian objectives, provide an inadequate problem-solving 
methodology in determining the lawfulness of nuclear weapons. Even if 
it is assumed that the analogies invoked possess some contemporary rele- 
vance, they should be employed only as ancillary analytical techniques. 
There is, in summary, no adequate alternative to a direct analysis which 



115 The principal character of the blast effects is indicated in op. cit. supra note 
104 at 102-315. 

118 Op. cit. supra note 112 at 38 (footnote omitted). 

117 See the text accompanying supra notes 8—1 1. 

115 See the text accompanying supra notes 80-83; 100. 



171 

considers the characteristics and the uses of the wide range of weapons 
which are subsumed under the label of "nuclear." 119 

There are further persuasive reasons to doubt that nuclear weapons 
are now illegal without qualification. Two nuclear weapons, as is well 
known, were actually employed just before the end of the Second World 
War. In addition, large numbers of these weapons exist in the military 
stockpiles of the two military "superpowers" as well as in smaller numbers 
in the stockpiles of three other major powers. However distressing it may 
be, the existence of these weapons indicates the possibility, or even the 
probability, of their use in certain types of future coercive situations. 

It is ancient juridical wisdom that legal analysis involves more than 
logic. 120 Even if it were assumed that the analogies of writers arguing the 
illegality of nuclear weapons were logically unexceptionable, this would 
only be a portion of the necessary analysis. Experience suggests that the 
concept of "law" is more meaningful when associated with at least the 
possibility of some enforcement or sanction than when used without refer- 
ence to enforceability. 121 The writers urging the illegality of nuclear 
weapons appear to give little or no consideration to the sanctions problems. 
The determination of such illegality without even a remote prospect of 
enforcement creates illusion rather than the type of more effective social 
control usually associated with the concept of "law." 122 It is a particularly 
dangerous illusion since it could lead to the belief that the difficult and 
complex processes involved in the effective control of nuclear weapons 
have already been achieved. It appears to be the wiser juridical analysis, 
as well as the safer one, to determine the issue of the lawfulness of nuclear 
weapons with full regard for the necessity to combine doctrines with 
sanctions to achieve enforceable law. 

Unlike the situation concerning biological and chemical weapons, there 
are no conventional rules which even purport to prohibit or limit nuclear 
weapons. It seems unsound and dangerous to assume illegality in the 
absence of express and direct conventional agreement. 123 In addition, it 



119 The analysis by Cagle in op. cit. supra note 105 is based upon the existence of 
weapons ranging from small "tactical" to large "strategic" ones. 

20 If citation of authority is needed, the classic statement is: "The life of the law 
has not been logic: it has been experience." Holmes, The Common Law 1 (1881; 
reprint 1938). 

121 The centrality of sanctions in maintaining at least minimum world public order 
is demonstrated in McDougal & Feliciano 261-383. 

123 If "law" is not used to include at least a modicum of sanction, a distinction 
must be made between law which can be enforced and that which cannot to promote 
necessary clarity in meaning. 

123 The same conclusion is reached in O'Brien, "Legitimate Military Necessity in 
Nuclear War," 2 World Polity 35, 116 (1960). 

The present validity of nuclear weapons is upheld by Prof. Stone in a brief 
analysis. Stone 343-44. 



172 

is probable that the nonuse of nuclear weapons since 1945 indicates con- 
siderations such as the absence of a general war rather than the develop- 
ment of customary agreement prohibiting these weapons. 

It is well known that the three principal nuclear powers, the United 
States, the Soviet Union, and the United Kingdom, have been engaged 
over a considerable period of time in diplomatic negotiations which are 
designed to achieve an international agreement under which nuclear weap- 
ons would be effectively "outlawed" or "abolished." 124 This tends to 
support the view that nuclear weapons are lawful, at least in some contexts, 
until the negotiations result in such an agreement. Such weapons appear 
to be valid now in the same way that the persistent claims designed to 
make the submarine an unlawful combatant unit conceded its lawful status 
by necessary implication, at least pending the achievement of a prohibitory 
agreement. 

b. THE LAWFULNESS OF PARTICULAR USES OF NU- 
CLEAR WEAPONS 

The use of biological and chemical weapons as legitimate reprisals 
in response to the illegal use of these same weapons has already been 
considered. 125 Even if it is assumed that nuclear weapons are unlawful, 
it seems clear that they may be lawfully used as legitimate reprisals in 
retaliation to the unlawful use of such weapons. There may also be other 
grim situations in which their use should be upheld juridically under the 
doctrines concerning legitimate reprisals. Professor Lauterpacht has pro- 
vided this example: 

[I]f during the Second World War it had become established beyond 
all reasonable doubt that Germany was engaged in a systematic plan 
of putting to death of millions of civilians in occupied territory, the 
use of the atomic bomb might have been justifiable as a deterrent 
instrument of punishment. 126 

It does not, of course, require extended legal argument to demonstrate 
that the Nazi killings of millions of innocent civilians were mass murders. 
It is well established that the purpose of reprisal measures is to deter 
illegal acts and it is obvious that these particular illegal acts should have 
been deterred if at all possible. Only one qualification, therefore, is sug- 
gested concerning Professor Lauterpacht's statement. If the atomic bomb 
had been used as a deterrent, it could be justified properly as a reprisal 
only if it had been directed with the greatest possible precision at the Nazi 
murderers so as to minimize, and if possible eliminate completely, the 
ancillary killing of the victims of the Nazis and of other civilians. 



124 The principal contemporary proposals and counterproposals appear in U.S. Arms 
Control and Disarmament Agency, Documents on Disarmament 1965 (1966). 



125 See the text accomanying supra note 102. 
128 Oppenheim-Lauterpacht 351. 



173 

It will be recalled that, aside from the doctrines regarding reprisals, 
the accepted test concerning the lawfulness of the use of a weapon is that 
it must not create value destruction which is out of proportion to the 
military advantage achieved by it. 127 A different test to determine the 
lawfulness of nuclear weapons has not been developed in either conven- 
tional or customary international law and, consequently, the traditional 
test must be applied to these new weapons. Professor McDougal and Dr. 
Feliciano have made this careful formulation of the test : 

[T]he fundamental policy of minimum unnecessary destruction may 
be seen to underlie questions of legitimacy. . . . [W]here the suffering 
or deprivation of values incidental to the use of a particular weapon 
is not excessively disproportionate to the military advantage accruing 
to the belligerent user, the violence and the weapon by which it is 
effected may be regarded as permissible. All war instruments are 
"cruel" and "inhuman" in the sense that they cause destruction and 
human suffering. It is not, however, the simple fact of destruction, 
nor even the amount thereof, that is relevant in the appraisal of such 
instruments; it is rather the needlessness, the superfluity of harm, the 
gross imbalance between the military result and the incidental injury 
that is commonly regarded as decisive of illegitimacy. 128 

Claims relating to the lawfulness of particular uses of nuclear weapons 
may be considered conveniently in two subsidiary categories. The first con- 
sists of claims concerning the fact situations which may occur in naval war- 
fare in a future general war. The second comprises claims concerning the 
fact situations which may occur in "strategic" nuclear bombardment in 
such a war. 129 

(1) Claims Concerning Nuclear Weapons in Naval Warfare 
Relatively small atomic weapons of the type usually characterized 
as "tactical" have been developed for specialized use in naval warfare. 130 
In addition to the homing high-speed torpedoes with nuclear warheads 
which comprise significant submarine offensive weapons, there are also 
nuclear weapons which have particular significance in antisubmarine war- 
fare. Professor Kuenne has described one of these as follows: 



127 See the statements of the test which are quoted in the text accompanying supra 
notes 35-37. 

The Law of Naval Warfare states concerning nuclear weapons: 
There is at present no rule of international law expressly prohibiting states from 
the use of nuclear weapons in warfare. In the absence of express prohibition, 
the use of such weapons against enemy combatants and other military objectives 
is permitted. 
Section 613 (footnote omitted). 

128 McDougal & Feliciano 615-16. 

129 Subheadings making specific reference to future general war are used in Chs. 
Ill and IV. The future oriented character of much of the ensuing text is apparent. 

130 See the text of Ch. I accompanying notes 42-43. 



174 

The atomic depth charge, Lulu, which can kill a submarine within 

two or three miles of its detonation point, can be dropped only if friendly 

surface craft are not in the vicinity. 131 

A traditional depth charge with TNT explosive which is directed with 
precision at a submerged submarine will most usually sink the submarine 
and result in the killing or drowning of its entire crew. In achieving such 
destruction, the nuclear depth charge is very similar to the traditional 
one. The greatly enhanced efficiency of the nuclear charge, however, is 
evident in its ability to "kill" a submarine within a radius of "two or three 
miles of its detonation point." The military result is that one nuclear depth 
charge, even when employed with imprecise aiming is probably more 
likely to destroy a submarine than a number of better aimed traditional 
charges. In a general naval war in which both attack submarines and 
fleet ballistic missile submarines are employed, it is difficult to believe that 
only traditional depth charges and torpedoes will be employed in attacking 
them. The reasons for this conclusion include the existing stockpiles of 
these "tactical" weapons and the naval expectations concerning their use. 132 
There is no doubt, of course, concerning the status of such belligerent 
warships as lawful objects of attack. 

In view of the great military efficiency of "tactical" nuclear depth 
charges, torpedoes, and similar weapons in the situation described, they 
will probably be appraised as lawful providing that the ancillary destruc- 
tion of values is not disproportionate to their military efficiency. There is 
no doubt that there would be some ocean water contamination involved 
in the use of these and other nuclear weapons at sea. In addition, the 
sinking of a nuclear-powered submarine would probably cause further 
water contamination. 133 In view of the primacy which has been histori- 
cally accorded to military efficiency in general war, there is reason to 
believe that the traditional criteria would be applied to uphold the lawful- 
ness of "tactical" nuclear weapons at sea in future general wars. This 
tentative prediction, it must be emphasized, assumes the minimization of 
ancillary injuries to both of the belligerent sides and to the neutrals. 

The use of the "strategic" or very large thermonuclear weapons at sea, 
however, would probably be unlawful in the tactical naval warfare situa- 



131 Kuenne, The Polaris Missile Strike: A General Economic Systems Analysis 57 
(1966). 

See the emphasis on the importance of antisubmarine warfare in Demyanov (Eng.- 
Capt. 2nd Rank, U.S.S.R. Navy), "A Soviet View of Antisubmarine Warfare" [transl. 
from Russian], 9 Navy: The Magazine of Sea Power No. 10, p. 21 (1966). 

132 See Cagle, op. cit. supra note 105 passim. 

133 The spread of radiation following "a shallow underwater burst" is described in 
op. cit. supra note 104 at 469, section 9-128. In the situation described in the text 
it is assumed that there would also be some contamination of fish and other living 
organisms of the sea. 



175 

tions just described. Such large weapons would produce much greater 
environmental contamination. Where a tactical nuclear weapon would 
achieve the same military purpose, such excessive contamination as well 
as other excessive ancillary damage is unnecessary and therefore unlawful. 
In the same way, such large weapons could result in an unlawful "overkill" 
by the destruction of values beyond those necessary to obtain the military 
objective. 

There are different naval warfare contexts in which it is even possible 
that the use of "strategic" thermonuclear weapons may meet the test of 
lawfulness. Prior to the Second World War, naval battles were conducted 
typically with each of the battle fleets within visual sight of the other. 
The Battle of the Coral Sea in the early part of the Second World War 
was the first major naval engagement in which the principal combatant 
ships did not come within visual contact. 134 The decisive aspect of the 
battle was the attacks made by airplanes from the fleet aircraft carriers. 
It is not impossible in a future general war at sea that a squadron of sub- 
merged fleet ballistic missile submarines may employ thermonuclear weap- 
ons in attacking a similar squadron of the enemy belligerent. Polaris mis- 
siles, as is well known, may be launched while the submarine is submerged. 
There are apparently no technical reasons why these or similar weapons 
could not reenter the water environment after their flight and seek out 
their submarine targets. 135 The present issue concerns the lawfulness of the 
employment of thermonuclear weapons in the assumed situation. If it 
could be demonstrated that these weapons possess the efficiency which is 
necessary to achieve the military objective and, further, that tactical nu- 
clear weapons lack such efficiency, it would be persuasive as to the lawful- 
ness of this use of thermonuclear weapons. If it could also be demonstrated 
that the ancillary destruction of values injuring the belligerents and the 
neutrals was minimal, it would further strengthen an argument of lawful- 
ness. In making such a determination concerning the issue of legality, it 
would be necessary to give full consideration, inter alia, to both the short- 
range and long-range effects of envirnomental contamination. 136 

(2) Claims Concerning Strategic Nuclear Bombardment 

One of the principal military capabilities of the fleet ballistic 
missile submarine is the bombardment of targets located on land with 
■nuclear or traditional explosives. Because of this, the ensuing legal analysis 
is functionally similar to that usually described as "aerial bombardment" 
or "strategic bombardment." In a juridical appraisal the particular type of 
launching vehicle, vessel, or device for a nuclear weapon, whether a sub- 



134 Potter & Nimitz 667. 

135 The contemporary Polaris missiles are described in Kuenne 1 78. 

136 



See op. cit. supra note 104 at 316-501. 



176 

marine warship, a surface one, an aircraft, a land-based installation, or a 
launching system in space 137 would not appear to be of major significance. 

(a) Claims Concerning Target Selection 
The hypothetical situations considered concerning nuclear war 
at sea were relatively simple in one respect because they involved only 
military targets. Target selection in land areas where civilian populations 
reside presents more difficult issues. 

The only treaty law concerning target selection in aerial bombardment 
appears in the Regulations Annexed to Hague Convention No. IV (1907) : 
The attack or bombardment, by whatever means, of towns, villages, 

dwellings, or buildings which are undefended is prohibited. 138 

The words, "by whatever means," were probably designed to refer to 
dirigibles and heavier-than-air aircraft at the time they were written. It 
would be a rather extreme over-extrapolation to interpret them as some- 
how referring to ballistic missiles with nuclear warheads and other con- 
temporary weapons which were not even thought of in 1907. 139 This con- 
ventional doctrine was an attempt to apply by analogy the land warfare 
test of "undefended" towns used at the turn of the century to the different 
problems involved in aerial bombardment. Land warfare rules concerning 
bombardment at that time were formulated on the basis of the technology 
of land artillery which was then probably more efficient than the aerial 
bombardment methods. It is well known that this provision of the Hague 
Regulations was not observed in aerial bombardment in either of the World 
Wars. 140 

The somewhat more relevant analogy which has been employed in 
actual practice in aerial target selection is drawn from the naval bombard- 
ment test of "military objectives." This test as applied to traditional naval 
bombardment was limited technologically by the range of naval gunfire. 
In applying the test of "military objectives" to nuclear bombardment by 
modern military aircraft, Polaris missiles, and space-launching devices, it 
is apparent that there is no place upon the earth which cannot be reached. 
A place, however, cannot lawfully be subjected to bombardment unless a 
military objective is located in it. 

Although they are not conventional law, the draft Hague Rules of 
Aerial Warfare (1923) 141 adopt this military objective test which has been 
applied in both World Wars: 

Aerial bombardment is legitimate only when directed at a military 



137 See supra note 30. 

138 Art 25. 

139 Prof. Scott stated that the words "by whatever means" meant that "bombard- 
ment by balloons, if and when possible, is to be controlled and regulated as other 
bombardments." 1 Scott 652. 

140 As to World War I see 1 Garner 458-67. 

141 Text in 17 A.J.I.L. Supp. 245 (1923). 



177 

objective, that is to say, an object of which the destruction or injury 
would constitute a distinct military advantage to the belligerent. 142 
An obvious example of a target which is a lawful military objective is a 
naval shipyard. An equally obvious example of unlawful target selection 
was involved in the German use of the V-l (flying bomb) and V-2 (long- 
range rocket) weapons near the end of the Second World War. These 
weapons were simply directed at a general area comprising metropolitan 
London without regard to any military objective. 143 

The actual historical facts indicate, however unpleasant the contempla- 
tion of this may be, that considerable ancillary civilian destruction has 
been tolerated in the application of the test providing that the target is a 
lawful military objective. This is, nevertheless, better than a doctrine which 
would allow civilians to be made direct objects of attack. Professor Lauter- 
pacht's characterization of the fundamental principle of customary inter- 
national law prohibiting the use of terror directed against civilians as "an 
absolute rule of law" has been referred to previously. 144 Unless this basic 
humanitarian doctrine is effectively sanctioned, it is futile to attempt to 
maintain that there is a meaningful international law of war. If this single 
principle is violated systematically, the subsidiary doctrines which are de- 
signed to protect humanitarian values are rendered meaningless. 145 In an 
era of weapons of mass destruction with rapid missile delivery techniques 
there is a measure of sanction to enforce this principle at least in the 
decisions of rational government officials. If one side can employ terror 
against the civilian population in a general war situation, it is apparent 
that the other can do the same thing. This is a negative sanction to im- 
plement a humanitarian doctrine but it is of use nonetheless if it operates 
with some effectiveness. The positive sanctions include a mental perspec- 
tive of common humanity which encompasses the enemy civilians as well 
as those of the same nationality as the decision-maker. The conjoining of 
these sanctions, with any other available ones added, constitute only ad hoc 
devices to provide some measure of protection for humanity pending the 
construction of a better world public order system which, at the least, 
effectively prevents general war. 146 

(b) Claims Concerning The Limitation of Destruction 
The present analysis concerns the issues involving the limita- 
tion of ancillary destruction where it is assumed that a lawful target is 



142 Art. 24, paragraph 1 . 

143 Description appears in Spaight 214-17. 

144 See the text of Ch. IV accompanying note 2. 

16 The prohibition of the use of nuclear weapons for the terrorization "of the gen- 
eral enemy population" is stressed in McDougal & Feliciano 668. 

Some of the steps designed to provide an improved public order are considered 
in McDougal, "Perspectives for an International Law of Human Dignity," 53 Proc. 
A.S.I.L. 107 (1959). 



178 

attacked. Rules of ideal doctrinal content would, of course, prohibit any 
ancillary destruction of or injury to civilians in attacks on lawful military 
objectives. The difficulty with such a doctrinal formulation is that experi- 
ence indicates it has little or no prospect of being enforced in a future 
general war. It is clear that in the relevant past belligerent practices, states 
have tolerated substantial ancillary destruction of civilian values. The fact 
is, even taking into account the development of efficient bombsights, radar 
instruments, night and bad weather guidance techniques, and similar 
devices, that as many as a third of the bombs dropped by aircraft usually 
fall outside of "a large factory" target. 147 The central factual point is that 
the bombardment of military objectives, as a matter of uniform past experi- 
ence and probable future expectation involves some incidental destruction 
of civilian life. 

The draft Hague Rules of Aerial Warfare (1923) attempted to prohibit 
what is now termed "strategic bombardment." The relevant provision 
states : 

The bombardment of cities, towns, villages, dwellings, or buildings 

not in the immediate neighborhood of the operations of land forces is 

prohibited. 148 
This reflects an attempt to limit aerial bombardment to tactical situations 
where the use of the bombardment is closely related to "the operations of 
land forces." 

It is well known that during the Second World War massive "strategic 
bombardment" employing large numbers of aircraft carrying traditional 
explosives was used. 149 This method of bombardment was practiced by the 
major belligerents even though the selected military targets such as fac- 
tories or military installations were in heavily populated areas where it was 
clear that many civilians would be and were killed. In the same way, the 
two uses thus far of nuclear weapons during war, the attacks on Hiroshima 
and on Nagasaki, involved great destruction of civilian lives although 
military objectives were at the center of the targets. 150 

The International Committee of the Red Gross Draft Rules (1956) pro- 
vide constructive suggestions designed to minimize the ancillary destruction 
of civilians. One modest provision, for example, states: 



147 Possony, Strategic Air Power: The Pattern of Dynamic Security 55 (1949). 

148 Art. 24, paragraph 3. 

149 See, e.g., Harris, Bomber Offensive (1947). 

150 The military objectives are stated by Henry L. Stimson, Secretary of War dur- 
ing World War II, in "The Decision to Use the Atomic Bomb," 194 Harper's Maga- 
zine 97 (Feb. 1947). 

Criticism of the action in using the nuclear weapons appears in Sack, "ABC- 
Atomic, Biological, Chemical Warfare in International Law," 10 Lawyers Guild Rev. 
161 (1950). 



179 

The person responsible for ordering or launching an attack shall, 
first of all: 

(a) make sure that the objective, or objectives, to be attacked are 
military objectives within the meaning of the present rule and 
are duly identified. 

When the military advantage to be gained leaves the choice 
open between several objectives, he is required to select the one, 
an attack on which involves least danger for the civilian popu- 
lation . . . 151 
Since it does not interfere with military efficiency, this provision should be 
implemented to minimize harm to civilians. 

United States v. Ohlendorf 152 presents a judicial perspective concerning 
the ancillary destruction of civilians in aerial bombardment. The facts of 
the case concerned the infamous Einsatzgruppen which were the special 
task forces employed by the Nazis to murder the "inferior" civilian persons 
behind the military lines in Eastern Europe and in the Soviet Union. The 
defendants claimed, inter alia, that there was no meaningful distinction 
between the systematic killing of civilians who were members of one or 
more of the proscribed groups as the defendants had done and killing 
civilians with atomic bombs as the United States had done in Japan. 153 
In response to this argument the judgment stated : 

A city is bombed for tactical purposes; communications are to be 
destroyed, railroads wrecked, ammunition plants demolished, factories 
razed, all for the purpose of impeding the military. In these operations 
it inevitably happens that nonmilitary persons are killed. This is an 
incident, a grave incident to be sure, but an unavoidable corollary of 
battle action. The civilians are not individualized. The bomb falls, it 
is aimed at the railroad yards, houses along the tracks are hit and 
many of their occupants killed. But that is entirely different, both in 
fact and in law, from an armed force marching up to these same rail- 
road tracks, entering those houses abutting thereon, dragging out the 
men, women, and children and shooting them. 154 

The Charter of the International Military Tribunal at Nuremberg 
characterized the "wanton destruction of cities, towns, or villages, or devas- 
tation not justified by military necessity" as a war crime. 155 None of the 
major war criminals, however, was charged with indiscriminate aerial 



151 Draft Rules for the Limitation of the Dangers Incurred by the Civilian Popula- 
tion in Time of War, art. 8(a) (1956). 

Ma "The Einsatzgruppen Case," 4 Trials of War Crims. 1. 

163 Id. at 466, 467. The testimony of Ohlendorf on this general subject appears in 
id. at 355-57. 

164 4 Trials of War Crims. 1, 467. 

155 Art. 6(b). Text in 1 I.M.T. 10, 11. 



180 

bombing. In addition, the United Nations War Grimes Commission in 
preparing lists of persons who, prima facie, appeared to have committed 
a war crime, rejected cases alleging illegal aerial bombardment if the 
places bombarded contained military objectives. 156 

Dr. Spaight has attempted to make a fundamental legal discrimination 
between strategic bombardment which involves target-area bombing by 
large numbers of aircraft using traditional weapons and strategic bombard- 
ment using atomic weapons. He states: 

[International law] should hold to the view that, while target-area 
bombing comes close to the borderline of permissibility, atom bomb- 
ing definitely oversteps it. To change the metaphor, one might say 
that target-area bombing remains anchored — under strain — to the 
rule of the military objective, which must now be regarded as inter- 
national law; atom bombing breaks adrift. 157 
This argument appears to be based on the assumption that where nuclear 
weapons are employed there is no possibility whatsoever of limiting the 
ancillary destruction connected with the attack upon the military target. 
The opposite assumption is made concerning target-area bombing. Both 
assumptions seem to be open to considerable doubt because of the con- 
temporary range in the size and explosive power of various nuclear weap- 
ons and the past conduct of target-area bombing. It does not seem possible 
to state with certainty that under no circumstances could a nuclear weapon, 
or several of them, be used in a manner which effectively limits ancillary 
destruction. Although as used by the Allied Powers during the Second 
World War, target-area bombing with traditional weapons placed very 
few effective limitations upon ancillary destruction, such bombing could 
also be used so as to limit such destruction more effectively. 

The significant differences for present purposes between traditional 
explosives employed in very large quantities and one or more nuclear 
weapons concern the initial and residual effects which are associated with 
the nuclear weapons. 158 The "dirty" nuclear weapon is one which places a 
large amount of radiation in the environment. 159 Such radiation, and its 
consequent deadly or injurious effects, will be manifested in the immediate 
area of the explosion in particular and throughout the world environment 
in general over a considerable period of time. 160 On the other hand, a 
"clean" nuclear bomb is designed, like traditional bombs, to be deadly in 
its blast and heat effects but to minimize the associated radiation effects. 161 



156 Digest of Laws and Cases, 15 Reps. U.N. Comm. 110, n. 2. 
^ Spaight 276. 

158 U.S. Dept. of Defense, The Effects of Nuclear Weapons 369-413 (initial 
effects), 414-501 (residual effects) (rev. ed. 1962). 

159 Id. at 435-36. 

160 See id. at 473-88. 

161 The technological limitations upon reducing the radiation effects of nuclear 
weapons are described in id. at 435-36. 



181 

The radiation effects of the "dirty" bomb can impose continuing destruc- 
tion upon the civilian population after the bombing has stopped. It seems 
clear, consequently, that this type of effect from the use of nuclear weap- 
ons may impose unreasonably high and disproportionate levels of destruc- 
tion upon the civilian population. These factual differences justify a differ- 
ent juridical appraisal of such nuclear weapons. It should be maintained 
that where the radiation effects are likely to cause such high and dispro- 
portionate levels of destruction of the civilian population, the nuclear 
weapon should be regarded as unlawful in a situation where a number of 
traditional weapons with the same blast and heat effects would be deemed 
lawful. Among the sanctions to uphold this differential juridical treatment 
is the common self-interest of all mankind, including rational decision- 
makers, in preserving the earth and its environment as habitable for 
humanity. 

The comments concerning the military inefficiency of biological or 
chemical weapons which are uncontrollable by their belligerent users are 
equally applicable to nuclear weapons which are similarly uncontrollable. 
The International Committee of the Red Cross Draft Rules (1956) make 
this recommendation concerning uncontrollable weapons : 

Without prejudice to the present or future prohibition of certain 
specific weapons, the use is prohibited of weapons whose harmful 
effects — resulting in particular from the dissemination of incendiary, 
chemical, bacteriological, radioactive or other agents — could spread to 
an unforeseen degree or escape, either in space or in time, from the 
control of those who employ them, thus endangering the civilian pop- 
ulation. 162 

In such an extreme situation, considerations of humanity and those of 
military efficiency should be combined to protect common humanity from 
mass destruction. The most obvious way to avoid destruction of civilian 
values by nuclear weapons is not to use such weapons. The constructive 
contemporary use of nuclear weapons is in their role as inducements to 
avoid general war. They are now being used as the key element in a mutual 
deterrence system which establishes a primitive minimum public order 
based on the threat of mutual nuclear disaster. 163 

C. CLAIMS CONCERNING WEAPONS OF ATTACK IN 
LIMITED WAR 

In the appraisal of other aspects of limited war, a central distinction 
has been made between limited wars involving major powers as the par- 



183 Art. 14, paragraph 1. 

163 The nuclear deterrence role of fleet ballistic missile submarines is considered in 
Kuenne, The Polaris Missile Strike: A General Economic Systems Analysis 65 and 
passim ( 1 966 ) . 



182 

ticipants and similar wars where minor powers comprise the participants. 
Such an organization appears less useful in considering the lawfulness of 
particular weapons in limited war situations. Most states have armaments 
which include, even though in very modest degree in some instances, 
traditional naval weapons. 164 In addition, there is an existing trend toward 
the proliferation of nuclear weapons which will apparently continue unless 
conventional agreements are reached to prevent it effectively. 165 The 
present organization, consequently, will consider the same weapons cate- 
gories used in the general war analysis. At the outset, it should be stated 
that the limitation of weapons is indispensable if limited wars are not to 
be replaced by or "escalated" into general wars. 166 

Weapons of mass destruction which are uncontrollable in the hands of 
their belligerent users have been referred to in the context of general war. 
Even in general war situations, such weapons cannot be justified as lawful 
by the most expanded conceptions of military necessity since they do not 
achieve military objectives without disproportionate ancillary destruction. 167 
It is obvious that they also lack military efficiency and lawfulness in limited 
war. A narrow conception of the tactical controllability of weapons is also 
necessary in limited war situations and the weapons used must be con- 
sistent with the limited political objectives which are postulated. 168 

The customary law test involving a determination of the reasonable 
proportionality between the military efficiency of the weapon and the 
ancillary destruction of values caused by its use is also employed in deter- 
mining the lawfulness of weapons in limited war. 169 The point which must 
be stressed, however, is that the same juridical principle used in weapons 
appraisal in general war is now being applied in the very different con- 
text of limited war. If it is assumed that exactly the same weapon were 
used in each type of war, a certain degree of ancillary destruction of values 
which would be acceptable in general war might well be quite unaccept- 
able and, consequently, unlawful in limited war. 

A recognized naval authority has written concerning the combat capabili- 



164 Le Masson (ed.), Les Flottes de Combat 1966 lists eighty states which have 
navies (or functionally equivalent organizations) with associated vessels and weapons. 

165 The facts are well known. See The American Assembly, A World of Nuclear 
Powers? (Buchan ed. 1966). 

166 The textual statement is obvious. The point is stressed in Osgood 248-50 and 
passim. 

187 Prof. O'Brien advances a careful and balanced conception of military necessity 
in "Legitimate Military Necessity in Nuclear War," 2 World Polity 35 (1960). He 
stresses the relevance of the central concept of proportionality in appraising the 
facts. Id. at 69-82. Of course, some facts, such as the genetic effects of radiation, 
are not understood adequately. See id. at 72-73. 

88 See the analysis of tactical nuclear weapons in limited war in Osgood 251—59. 

169 See the test as formulated by Prof. McDougal and Dr. Feliciano in the text 
accompanying supra note 128. 



183 

ties of the U.S. Navy in the war in Vietnam: 

The United States Navy is ... a gentle giant. It must be a source 
of wonder to many a nation, especially to any aggressively inclined, 
why the United States, with such a colossal naval strength at its com- 
mand, capable of landing any size of military force and mounting any 
size of air strike, has not bulldozed her way to the objective in Viet- 
nam. The U.S. Navy is doubtless capable not only of containing any 
possible combination of Vietnamese forces arrayed against it but of 
countering any force that any co-belligerents might have available 
in that sphere. Yet, the U.S.N, attack craft, surface, submarine or air, 
the amphibious ships, support vessels, transports and auxiliaries have 
shown the restraint necessary to channel down the operations to 
limited and conventional war. 170 
In his 1967 State of the Union Message the President of the United 

States stressed other factors than weapons capability and military power. 

His statement raised a fundamental question concerning the conduct of 

limited war by the United States : 

Whether we can fight a war of limited objectives over a period of 
time, and keep alive the hope of independence and stability for people 
other than ourselves; whether we can continue to act with restraint 
when the temptation to "get it over with" is inviting but dangerous; 
whether we can accept the necessity of choosing "a great evil in order 
to ward off a greater"; whether we can do these without arousing 
the hatreds and the passions that are ordinarily loosed in time of war — 
on all these questions so much turns. 171 

1. Traditional Naval Weapons 

The weapons now under consideration are the same traditional ones 
which have been considered in connection with general war. Such weap- 
ons of considerable destructive power have been employed in limited wars. 
During the Korean War, for example, the North Korean forces employed 
modern sea mines, including acoustic and magnetic types, with consider- 
able effectiveness. 172 The Soviet Union provided technical assistance in 
these operations. 173 It is necessary to recognize that because a weapon may 
be accurately characterized as "traditional" does not, without more con- 
sideration, provide reasonable assurance of the lawfulness of its use in all 



170 Blackman (ed.), Jane's Fighting Ships 1965-66 iv, v. 

171 "The State of the Union" (delivered Jan. 10, 1967), 56 Dept. of State Bull 
158, 163 (Jan. 30, 1967). 

President John Adams' central role in limiting the limited naval war with France 
is described in Bailey, A Diplomatic History of the Amercan People 94-97 (6th ed. 
1958). 

172 Cagle & Manson 142-46. 

173 Ibid. 



184 

the divergent fact situations of limited war. If the traditional torpedo with 
a warhead of TNT explosives were used against merchant ships not par- 
ticipating in the war or hostilities, for example, it would be a violation of 
the Submarine Protocol. In addition, such use might make the continuing 
limitation of the war most difficult if not impossible. 

It should be obvious that the availability of traditional weapons of all 
kinds, including specialized naval ones, is indispensable for limited war 
purposes. 174 In the same way, there must be a carefully thought out and 
continuingly updated naval doctrine concerning weapons uses in limited 
war. 175 If these important matters are not adequately recognized the 
results could be disastrous. A major power which neglects traditional 
weapons and tactical nuclear ones in favor of overemphasis upon large 
nuclear and thermonuclear ones could be confronted with a situation 
where it has no better alternative than a choice between general war 
involving the use of weapons of mass, destruction on the one hand or sur- 
render on the other. 

2. Traditional Naval Bombardment 

The historic examples of traditional naval bombardment of land targets 
which were mentioned in connection with general war situations involved 
only modest legal limitation upon the efficiency of the bombardment be- 
cause of the "military objective" test employed in the applicable conven- 
tional law. 176 Military interest, nevertheless, imposed meaningful limita- 
tions upon needless destruction of values. The basic military principle of 
economy of force required the careful control of naval gunfire so as to 
maximize military injury to the enemy. It is well known that naval gun- 
fire, along with aircraft bombing attacks, was used as the spearhead of the 
great United States amphibious operations in the Pacific War. 177 In this 
use of naval gunfire it was not a matter of promoting the principle of 
humanity alone to direct the gunfire at specific military objectives, such 
as gun installations and aircraft runways, but it was also a matter of simple 



174 Seim, "Are We Ready to Wage Limited War?" 87 Nav. Inst. Proc. No. 3, p. 27 
(1961). 

The interest of the Soviet Union in traditional weapons is indicated in Marshal 
of the Soviet Union Sokolovskii (ed.), Soviet Military Strategy 51 and passim (Rand 
Corp. transl. 1963). 

175 Cagle, "A Philosophy for Naval Atomic War," 83 Nav. Inst. Proc. 249 (1957) 
is a thoughtful and fundamental contribution. See also the careful consideration of 
the limited war role of the aircraft carrier in Gormley, "Limited War and the Strik- 
ing Fleets," 89 Nav. Inst. Proc. No. 2, p. 53 (1963). 

The related necessity of legal doctrines for limited war is thoughtfully considered 
in Baldwin, "A New Look at the Law of War: Limited War and Field Manual 
27-10," 4 Military L. Rev. 1 (Army Pam. No. 27-100-4; 1959). 

176 See the text accompanying supra notes 61-63. 

177 See Potter & Nimitz 745-48 and passim. 



185 

self-preservation. Unless the Japanese military targets on land were effec- 
tively destroyed, they had the capacity to sink or severely damage the 
battleships 178 and other warships comprising the attack force. 

The conjoining of the principles of humanity and military necessity to 
protect human values should be even more important in a limited war 
naval bombardment situation. The United States amphibious landing at 
Inchon in the early part of the Korean War was preceded by a heavy 
naval bombardment. 179 The specific character of this bombardment has 
been authoritatively described as follows: 

Vice Admiral Struble's orders to the bombardment forces clearly 
specified that there should be no promiscuous firing at the city itself 
or at civilian installations. To achieve this, the entire objective area 
had been divided into 60 sub-areas. Known military targets had been 
previously assigned, and those which offered the greatest potential 
hazard to our landing troops were circled in red. It had been agreed 
that any ship could fire into a red-circle area with or without a 
"spot." In the uncircled areas, however, firing was permitted only if 
definite targets were found and an air spot was available. This differ- 
entiation between types of areas was adopted to reduce destruction 
of nonmilitary targets to a minimum, to save the city of Inchon for 
occupation forces, and to avoid injury to civilian personnel. . . . 
[Struble ordered:] Bombing and gunfire will be confined to targets 
whose destruction will contribute to the conduct of operations — ac- 
curate gunfire and pinpoint bombing against specific targets, rather 
than area destruction, is contemplated. 180 

3. Biological and Chemical Weapons 

The juridical appraisal concerning the use of biological and chemical 
weapons which are uncontrollable by the belligerent user in general war 181 
is even more applicable, a fortiori, in limited war situations. If biological 
or chemical weapons are to be used lawfully in limited war they must be 
weapons of very limited destructive power which are employed under the 



178 The Navy now maintains the four Iowa class battleships (including the 
Missouri of Japanese surrender ceremony fame) mounting nine 16-inch guns each 
in the Reserve Fleets. The New York Times, April 9, 1967, p. 1, cols. 1, 2 reports 
that consideration is being given to recommissioning one or more of these ships for 
shore bombardment purposes in the war in Vietnam because of the efficiency of their 
gunfire. [Editor's note: The decision to reactivate the battleship New Jersey for 
employment in the Pacific Fleet in augmentation of the naval gunfire support force 
in Southeast Asia was announced on August 1, 1967. Department of Defense News 
Release No. 708-67 of August 1, 1967.] 

179 Cagle & Manson 97. It involved the use of short-range rockets as well as gun- 
fire. 

180 Cagle & Manson 97. 

181 See the text accompanying supra note 69. 



186 

most rigid technological and tactical controls. It is unfortunate that the 
broad language in the Geneva Gas Protocol referring to "poison gases" 
and then to "all analogous liquids, materials or devices" 182 is susceptible 
through mechanical interpretation to the inclusion of nonlethal biological 
or chemical weapons which produce temporary disablement of enemy 
personnel without permanent damage to the human organism. Such 
mechanical interpretation 183 is, of course, quite inconsistent with the 
humanitarian purpose of the Gas Protocol to prevent the use of highly 
injurious and destructive gases. 

There are many situations in which the use of tear gas, or similar chemi- 
cal agents, imposes much less damage or injury upon enemy personnel 
than alternative weapons. The use of tear gas in preference to flame- 
throwers against guerrilla troops located in entrenched positions has been 
referred to in connection with a general war situation. 184 The humani- 
tarian considerations in favor of the use of tear gas would appear to be at 
least equally applicable in a limited war situation. Another example in- 
volves the use of weapons to control riotous prisoners of war. This was a 
practical situation which arose with North Korean prisoners of war in 
United States prisoner of war camps. 185 Riots among the prisoners were 
apparently initiated for the purpose of involving effective military forces 
which might otherwise have been used at the front. Rifles and machine 
guns were used at the outset to reestablish discipline in the camps. The 
use of tear gas was finally authorized for humanitarian reasons as well as 
for efficiency. 186 General Mark Clark, then the Commander of the United 
Nations Forces in Korea, apparently experienced some difficulty in obtain- 
ing authorization for the use of this gas which is harmless in residual 
effects. 187 The reluctance of the Department of the Army to authorize the 
use of tear gas in this situation apparently reflects the general revulsion 
shared by military personnel with civilians against any weapon which can 
be included under the label "gas." It is most unfortunate in terms of the 
impact upon human values that word symbols 188 present difficulties in 
using less harmful and less destructive weapons. If limited weapons are to 
be used in limited wars, the responsible decision makers must look beyond 
the labels to the actual effects of particular weapons. 



183 See the Gas Protocol in the text accompanying supra notes 82—83. 

183 The intellectual inadequacy of mechanical or "literal" interpretation has been 
referred to in the text of Ch. IV accompanying notes 1 10—11. 

184 See the text accompanying supra note 92. 

185 Rothschild, Tomorrow's Weapon: Chemical and Biological 62-63 (1964). 

186 Id. at 63. 

187 Ibid. 

188 Word symbols, of course, are not identical with thoughts. "A word is not a crys- 
tal, transparent and unchanged, it is the skin of a living thought and may vary 
greatly in color and content according to the circumstances and the time in which 
it is used." Holmes, J. in Towne v. Eisner, 245 U.S. 418, 425 (1918). 



187 

Psychological conditioning and mental predispositions are, of course, 
important factors in obtaining popular acceptance or rejection of weap- 
ons. Popular views and prevailing opinions upon this subject are also 
factors which have some bearing upon the determination of lawfulness. 
Mr. Tompkins has written concerning weapons acceptability: 

The more direct the violence is in a weapon, the more acceptable it 
seems. People seem to object to non-violent or even non-lethal, weap- 
ons more strongly than they do to the the most violent ones. While there 
is an element of conditioning in this — we accept what we are used to 
— weapons seem to be accepted the closer they approximate the 
primitive violence of cutting, crushing, and stabbing. Ordinary shells, 
bullets, and bombs are really only modern ways of reaching the same 
bloody result that the caveman got with his stone ax or obsidian- 
tipped spear. 189 
If this analysis is correct, it presents a bleak prospect in terms of develop- 
ing and using the necessary limited weapons for limited war unless there 
is a reorientation of both military and civilian thinking in terms of facts. 

4. Nuclear Weapons 

It does not require detailed analysis to demonstrate that the use of 
large nuclear weapons and of any thermonuclear weapons presents the 
gravest problems concerning the restriction of military means employed 
in limited war. Professor Osgood has questioned whether or not the use 
of tactical nuclear weapons is consistent with the limitation of war. 190 
He emphasizes that if such tactical weapons are used, national strategy 
must control their use rather than the weapons use determining national 
strategy. 191 

General Taylor has also questioned the dangers involved in using even 
"small" nuclear weapons: 

[I]t also seems likely that there will be a desire to limit, if not to pre- 
vent, the use of atomic weapons in local conflicts for fear of their 
unpredictable consequences in broadening the war. These tendencies 
to restrict atomic weapons may also find support from the proprietor 
of the battle zone, presumably a friend to whom we are bringing 
military aid to resist aggression. There is such destructiveness in 
atomic weapons, even in the small ones, that serious objection to their 
use in friendly territory may be anticipated from the inhabitants. 192 
It has been determined previously that nuclear weapons cannot be 
convincingly appraised as unlawful per se. It has been suggested that, 



189 Tompkins, The Weapons of World War III: The Long Road Back from the 
Bomb (1966). 

190 Osgood 230. 

191 Id. at 230-31. 

lea Taylor, The Uncertain Trumpet 186-87 (1959). 



188 

in general war situations, there may be occasions when the tactical uses 
of nuclear weapons will probably be appraised as lawful. 193 It is less possi- 
ble, but certainly not impossible, that the same appraisal of the lawfulness 
of particular tactical uses of nuclear weapons should be made in limited 
war situations as well. Such appraisals of probable lawfulness could only 
be made with assurance in situations where the traditional criteria of 
reasonable proportionality between the military efficiency of the weapon 
and the ancillary destruction of values could be demonstrated convincingly. 
A naval authority has formulated some of the central considerations 
involved in limited atomic warfare: 

Atomic warfare can be kept limited only if the world — friend and 
foe alike — knows the types and small sizes of weapons which could 
be used and understands the vast difference between precision atomic 
warfare and mass destruction warfare. Unless the difference between 
precision atomic warfare and massive retaliation is made clear, and 
our intention to use precision weapons delivered by precision means 
made known, the United States is irretrievably headed toward nuclear 
impotence, or drifting into what has been termed "atomic isolationism" 
and being powerless to respond to "nibbling aggression." 194 
In further development of this approach, the same writer has referred 
to three specific military objectives in the Korean War in which naval 
aircraft used traditional weapons in persistent attacks without achieving 
militarily efficient results. These targets were the Yalu River bridges, the 
key elements of the rail and road systems which were used to supply the 
North Korean armies, and the principal hydroelectric complexes in North 
Korea. 195 In his view, the precision delivery of tactical nuclear weapons 
against these targets would have accomplished the military objectives with- 
out disproportionate ancillary damage. 196 Because of this, the examples 
employed appear to meet the accepted juridical criteria for the lawful use 
of weapons. 

In appraisal of nuclear weapons in general war it was concluded that 
the avoidance of civilian destruction is achieved most effectively by the 
nonuse of these weapons. 197 This conclusion is obviously applicable in 
limited war situations also. Since there has been considerable experience 



193 See the text accompanying supra notes 132—33. 

194 Gagle, op. cit. supra note 175 at 254. 



195 Id. at 257-58. 

196 Ibid. 

The explosive yields of tactical naval weapons should be very small. Weapon 
design must reduce the fall-out peril to a minimum. The delivery method must 
always endeavor to place the weapon at the precise point of aim, and the ac- 
ceptable margin of error should be limited to tens of feet. 
Id. at 257. 

197 See the text accompanying supra note 163. 



189 

with limited wars since the end of the Second World War, the future 
projection which is grounded in past experience is that such wars are 
much more probable than a general war. 198 In considering a future ap- 
praisal concerning the lawfulness of nuclear weapons use in limited war 
it must be emphasized that the smaller the blast and ensuing radiation 
effects, and the more clear the minimization, or avoidance, of ancillary 
civilian destruction, the more likely an accurate appraisal of lawfulness 
becomes. In the meantime, efforts to achieve a convention which effec- 
tively bans nuclear weapons should be intensified so that the appraisals 
of lawfulness referred to may be only temporary. 



198 See the statement of such probability quoted in the text of Ch. I accompanying 
note 115. 



APPENDIX A 
THE LONDON NAVAL TREATY OF 1930 * 

ARTICLE 22 

The following are accepted as established rules of International Law: 

(1) In their action with regard to merchant ships, submarines must 
conform to the rules of International Law to which surface vessels are 
subject. 

(2) In particular, except in the case of persistent refusal to stop on 
being duly summoned, or of active resistance to visit or search, a warship, 
whether surface vessel or submarine, may not sink or render incapable of 
navigation a merchant vessel without having first placed passengers, crew 
and ship's papers in a place of safety. For this purpose the ship's boats 
are not regarded as a place of safety unless the safety of the passengers 
and crew is assured, in the existing sea and weather conditions, by the 
proximity of land, or the presence of another vessel which is in a position 
to take them on board. 

The High Contracting Parties invite all other Powers to express their 
assent to the above rules. 



1 U.S. Statutes At Large, Vol. XLVI, Part 2, p. 2881-2882 (Wash.: U.S. Govt. 
Print. Off., 1931). 



191 



APPENDIX B 

DOCUMENT DONITZ-100 1 

TESTIMONY OF FLEET ADMIRAL NIMITZ, U.S. NAVY, 11 MAY 
1946, REGARDING NAVAL WARFARE IN THE PACIFIC FROM 
7 DECEMBER 1941, INCLUDING THE PRINCIPLES GOVERNING 
THE RESCUE OF SURVIVORS OF SUNK ENEMY SHIPS (EX- 
HIBIT DCJNITZ-100) 



11 May 1946 

INTERROGATION OF FLEET ADMIRAL CHESTER W. NIMITZ, 

U.S. NAVY 

At the request of the International Military Tribunal the following 
interrogatories were on this date, 11 May 1946, put to Fleet Admiral 
Chester W. Nimitz, U.S. Navy by Lieutenant Commander Joseph L. 
Broderick, U.S. Naval Reserve, of the International Law Section, Office 
of the Judge Advocate General, Navy Department, Washington, D.C., 
who recorded verbatim the testimony of the witness. 

Admiral Nimitz was duly sworn by Lieutenant Commander Broderick 
and interrogated as follows: 

Q. What is your name, rank and present station? 
A. Chester W. Nimitz, Fleet Admiral, United States Navy, Chief of 
Naval Operations of the United States Navy. 

1. Q. What positions in the U.S. Navy did you hold from December 

1941 until May 1945? 
A. Commander-in-Chief, U.S. Pacific Fleet. 

2. Q. Did the U.S.A. in her sea warfare against Japan announce 

certain waters to be areas of operation, blockade, danger, restric- 
tion, warning or the like? 
A. Yes. For the purpose of command of operations against Japan 
the Pacific Ocean areas were declared a theater of operations. 

3. Q. If yes, was it customary in such areas for submarines to attack 

merchantmen without warning with the exception of her own 
and those of her Allies? 



a 40 I.M.T. 109-111, 
192 



193 

A. Yes, with the exception of hospital ships and other vessels under 
"safe conduct" voyages for humanitarian purposes. 

4. Q. Were you under orders to do so? 

A. The Chief of Naval Operations on 7 December 1941 ordered 
unrestricted submarine warfare against Japan. 

5. Q. Was it customary for submarines to attack Japanese merchant- 

men without warning — outside of announced operation or simi- 
lar areas since the outbreak of the war? 
A. The reply to this interrogatory involves matters outside the 
limits of my command during the war; therefore I make no 
reply thereto. 

6. Q. Were you under orders to do so? 

A. The reply to this interrogatory involves matters outside the 
limits of my command during the war, therefore I make no 
reply thereto. 

-Page 2— 

7. Q. If the practise of attacking without warning did not exist since 

the outbreak of the war, did it exist from a later date on? From 
what date on? 
A. The practice existed from 7 December 1941 in the declared 
zone of operations. 

8. Q. Did this practice correspond to issued orders? 
A. Yes. 

9. Q. Did it become known to the U.S. Naval authorities that Japa- 

nese merchantmen were under orders to report any sighted U.S. 
submarine to the Japanese Armed Forces by radio? If yes, when 
did it become known? 
A. During the course of the war it became known to the U.S. 
Naval authorities that Japanese merchantmen in fact reported 
by radio to Japanese armed forces any information regarding 
sighting of U.S. submarines. 

10. Q. Did the U.S. submarines thereupon receive the order to attack 

without warning Japanese merchantmen, if this order did not 
exist already before? If yes, when? 
A. The order existed from 7 December 1941. 

11. Q. Did it become known to the U.S. Naval authorities that the 

Japanese Merchantmen were under orders to attack any U.S. 
submarine in any way suitable according to the situation, for 
instance by ramming, gun fire or by depth charges. If yes, when 
did it become known? 
A. Japanese merchantmen were usually armed and always attacked 
by any available means when feasible. 



194 



12. Q. Did the U.S. submarines thereupon receive the order of attack- 

ing without warning Japanese merchantmen, if this order did 
not already exist before? If yes, when? 
A. The order existed from 7 December 1941. 

13. Q. Were, by order or on general principles, the U.S. submarines 

prohibited from carrying out rescue measures toward passengers 
and crews of ships sunk without warning in those cases where 
by doing so the safety of the own boat was endangered? 

-Page 3— 

A. On general principles the U.S. submarines did not rescue enemy 
survivors if undue additional hazard to the submarine resulted 
or the submarine would thereby be prevented from accomplish- 
ing its further mission. U.S. submarines were limited in rescue 
measures by small passenger-carrying facilities combined with the 
known desperate and suicidal character of the enemy. Therefore 
it was unsafe to pick up many survivors. Frequently survivors 
were given rubber boats and/or provisions. Almost invariably 
survivors did not come aboard the submarine voluntarily and 
it was necessary to take them prisoner by force. 

14. Q. If such an order or principle did not exist, did the U.S. sub- 

marines actually carry out rescue measures in the above men- 
tioned cases? 
A. In numerous cases enemy survivors were rescued by U.S. sub- 
marines. 

15. Q. In answering the above question, does the expression "merchant- 

men" mean any other kind of ships than those which were 
not warships? 
A. No. By "merchantmen" I mean all types of ships which were 
not combatant ships. Used in this sense it includes fishing 
boats, etc. 

16. Q. If yes, what kind of ships? 

A. The last answer covers this question. 

17. Q. Has any order of the U.S. Naval authorities mentioned in the 

above questionnaire concerning the tactics of U.S. submarines 
toward Japanese merchantmen been based on the grounds of 
reprisal? If yes, what orders? 
A. The unrestricted submarine and air warfare ordered on 7 
December 1941 resulted from the recognition of Japanese tactics 
revealed on that date. No further orders to U.S. submarines 
concerning tactics toward Japanese merchantmen throughout 
the war were based on reprisal, altnough specific instances of 
Japanese submarines' committing atrocities toward U.S. mer- 



195 

chant marine survivors became known and would have justified 
such a course. 

— Page 4 — 

18. Q. Has this order or have these orders of the Japanese Government 

been announced as reprisals? 
A. The question is not clear. Therefore I make no reply thereto. 

19. Q. On the basis of what Japanese tactics was the reprisal considered 

justified? 
A. The unrestricted submarine and air warfare ordered by the 
Chief of Naval Operations on 7 December 1941 was justified 
by the Japanese attacks on that date on U.S. bases, and on both 
armed and unarmed ships and nationals, without warning or 
declaration of war. 
The above record of my testmony has been examined by me on this 
date and is in all respects accurate and true. 

11 May 1946 

Chester W. Nimitz 
CHESTER W. NIMITZ 
Fleet Admiral, U.S. Navy 

The witness, Chester W. Nimitz, Fleet Admiral, U.S. Navy, was duly 
sworn by me prior to giving the above testimony and I do certify that 
the above is a true record of the testimony given by him. 

11 May 1946 

Joseph L. Broderick 
JOSEPH L. BRODERICK 
Lieutenant Commander, U.S. 
Naval Reserve 



APPENDIX C 

GENEVA CONVENTION FOR THE AMELIORATION OF 
THE CONDITION OF WOUNDED, SICK AND SHIP- 
WRECKED MEMBERS OF ARMED FORCES AT SEA 
OF AUGUST 12, 1949 * 

The undersigned Plenipotentiaries of the Governments represented at 
the Diplomatic Conference held at Geneva from April 21 to August 12, 
1949, for the purpose of revising the Xth Hague Convention of October 
18, 1907, for the Adaptation to Maritime Warfare of the Principles of the 
Geneva Convention of 1906, have agreed as follows: 

Chapter I. General Provisions 

ARTICLE 1. The High Contracting Parties undertake to respect and 
to ensure respect for the present Convention in all circumstances. 

ARTICLE 2. In addition to the provisions which shall be implemented 
in peacetime, the present Convention shall apply to all cases of declared 
war or of any other armed conflict which may arise between two or more 
of the High Contracting Parties, even if the state of war is not recognized 
by one of them. 

The Convention shall also apply to all cases of partial or total occupation 
of the territory of a High Contracting Party, even if the said occupation 
meets with no armed resistance. 

Although one of the Powers in conflict may not be a party to the present 
Convention, the Powers who are parties thereto shall remain bound by it 
in their mutual relations. They shall furthermore be bound by the Conven- 
tion in relation to the said Power, if the latter accepts and applies the 
provisions thereof. 

ARTICLE 3. In the case of armed conflict not of an international 
character occurring in the territory of one of the High Contracting Parties, 
each Party to the conflict shall be bound to apply, as a minimum, the 
following provisions: 

(1) Persons taking no active part in the hostilities, including members 
of armed forces who have laid down their arms and those placed 



X TIAS 3363, 6 UST 3217. 
196 



197 

hors de combat by sickness, wounds, detention, or any other cause, 
shall in all circumstances be treated humanely, without any adverse 
distinction founded on race, colour, religion or faith, sex, birth or 
wealth, or any other similar criteria. 

To this end, the following acts are and shall remain prohibited 
at any time and in any place whatsoever with respect to the above- 
mentioned persons: 

(a) violence to life and person, in particular murder of all kinds, 
mutilation, cruel treatment and torture; 

(b) taking of hostages; 

(c) outrages upon personal dignity, in particular, humiliating 
and degrading treatment; 

(d) the passing of sentences and the carrying out of executions 
without previous judgment pronounced by a regularly consti- 
tuted court, affording all the judicial guarantees which are 
recognized as indispensable by civilized peoples. 

(2) The wounded, sick and shipwrecked shall be collected and cared for. 

An impartial humanitarian body, such as the International Committee 
of the Red Gross, may offer its services to the Parties to the conflict. 

The Parties to the conflict should further endeavour to bring into force, 
by means of special agreements, all or part of the other provisions of the 
present Convention. 

The application of the preceding provisions shall not affect the legal 
status of the Parties to the conflict. 

ARTICLE 4. In case of hostilities between land and naval forces of 
Parties to the conflict, the provisions of the present Convention shall apply 
only to forces on board ship. 

Forces put ashore shall immediately become subject to the provisions 
of the Geneva Convention for the Amelioration of the Condition of the 
Wounded and Sick in Armed Forces in the Field of August 12, 1949. 

ARTICLE 5. Neutral Powers shall apply by analogy the provisions of 
the present Convention to the wounded, sick and shipwrecked, and to 
members of the medical personnel and to chaplains of the armed forces of 
the Parties to the conflict received or interned in their territory, as well as 
to dead persons found. 

ARTICLE 6. In addition to the agreements expressly provided for in 
Articles 10, 18, 3l, 38, 39, 40, 43 and 53, the High Contracting Parties 
may conclude other special agreements for all matters concerning which 
they may deem it suitable to make separate provision. No special agree- 
ment shall adversely affect the situation of wounded, sick and shipwrecked 
persons, of members of the medical personnel or of chaplains, as defined 
by the present Convention, nor restrict the rights which it confers upon 
them. 



198 

Wounded, sick and shipwrecked persons, as well as medical personnel 
and chaplains, shall continue to have the benefit of such agreements as 
long as the Convention is applicable to them, except where express pro- 
visions to the contrary are contained in the aforesaid or in subsequent 
agreements, or where more favourable measures have been taken with 
regard to them by one or other of the Parties to the conflict. 

ARTICLE 7. Wounded, sick and shipwrecked persons, as well as 
members of the medical personnel and chaplains, may in no circumstances 
renounce in part or in entirety the rights secured to them by the present 
Convention, and by the special agreements referred to in the foregoing 
Article, if such there be. 

ARTICLE 8. The present Convention shall be applied with the coop- 
eration and under the scrutiny of the Protecting Powers whose duty it is 
to safeguard the interests of the Parties to the conflict. For this purpose, 
the Protecting Powers may appoint, apart from their diplomatic or con- 
sular staff, delegates from amongst their own nationals or the nationals 
of other neutral Powers. The said delegates shall be subject to the approval 
of the Power with which they are to carry out their duties. 

The Parties to the conflict shall facilitate to the greatest extent possible 
the task of the representatives or delegates of the Protecting Powers. 

The representatives or delegates of the Protecting Powers shall not in 
any case exceed their mission under the present Convention. They shall, 
in particular, take account of the imperative necessities of security of the 
State wherein they carry out their duties. Their activities shall only be 
restricted as an exceptional and temporary measure when this is rendered 
necessary by imperative military necessities. 

ARTICLE 9. The provisions of the present Convention constitute no 
obstacle to the humanitarian activities which the International Committee 
of the Red Cross or any other impartial humanitarian organization may, 
subject to the consent of the Parties to the conflict concerned, undertake 
for the protection of wounded, sick and shipwrecked persons, medical 
personnel and chaplains, and for their relief. 

ARTICLE 10. The High Contracting Parties may at any time agree 
to entrust to an organization which offers all guarantees of impartiality 
and efficacy the duties incumbent on the Protecting Powers by virtue of 
the present Convention. 

When wounded, sick and shipwrecked, or medical personnel and chap- 
lains do not benefit or cease to benefit, no matter for what reason, by the 
activities of a Protecting Power or of an organization provided for in the 
first paragraph above, the Detaining Power shall request a neutral State, 
or such an organization, to undertake the functions performed under the 
present Convention by a Protecting Power designated by the Parties to a 
conflict. 



199 

If protection cannot be arranged accordingly, the Detaining Power 
shall request or shall accept, subject to the provisions of this Article, the 
offer of the services of a humanitarian organization, such as the Inter- 
national Committee of the Red Cross, to assume the humanitarian func- 
tions performed by Protecting Powers under the present Convention. 

Any neutral Power, or any organization invited by the Power concerned 
or offering itself for these purposes, shall be required to act with a sense 
of responsibility towards the Party to the conflict on which persons pro- 
tected by the present Convention depend, and shall be required to furnish 
sufficient assurances that it is in a position to undertake the appropriate 
functions and to discharge them impartially. 

No derogation from the preceding provisions shall be made by special 
agreements between Powers one of which is restricted, even temporarily, 
in its freedom to negotiate with the other Power or its allies by reason of 
military events, more particularly where the whole, or a substantial part, 
of the territory of the said Power is occupied. 

Whenever, in the present Convention, mention is made of a Protecting 
Power, such mention also applies to substitute organizations in the sense 
of the present Article. 

ARTICLE 11. In cases where they deem it advisable in the interest 
of protected persons, particularly in cases of disagreement between the 
Parties to the conflict as to the application or interpretation of the pro- 
visions of the present Convention, the Protecting Powers shall lend their 
good offices with a view to settling the disagreement. 

For this purpose, each of the Protecting Powers may, either at the invi- 
tation of one Party or on its own initiative, propose to the Parties to the 
conflict a meeting of their representatives, in particular of the authorities 
responsible for the wounded, sick and shipwrecked, medical personnel and 
chaplains, possibly on neutral territory suitably chosen. The Parties to the 
conflict shall be bound to give effect to the proposals made to them for 
this purpose. The Protecting Powers may, if necessary, propose for approval 
by the Parties to the conflict, a person belonging to a neutral Power or 
delegated by the International Committee of the Red Cross, who shall 
be invited to take part in such a meeting. 

Chapter II. Wounded, Sick and Shipwrecked 

ARTICLE 12. Members of the armed forces and other persons men- 
tioned in the following Article, who are at sea and who are wounded, 
sick or shipwrecked, shall be respected and protected in all circumstances, 
it being understood that the term "shipwreck" means shipwreck from any 
cause and includes forced landings at sea by or from aircraft. 

Such persons shall be treated humanely and cared for by the Parties 
to the conflict in whose power they may be, without any adverse distinction 



200 

founded on sex, race, nationality, religion, political opinions, or any other 
similar criteria. Any attempts upon their lives, or violence to their persons, 
shall be strictly prohibited; in particular, they shall not be murdered or 
exterminated, subjected to torture or to biological experiments; they sh 
not wilfully be left without medical assistance and care, nor shall conditions 
exposing them to contagion or infection be created. 

Only urgent medical reasons will authorize priority in the order of 
treatment to be administered. 

Women shall be treated with all consideration due to their sex. 

ARTICLE 13. The present Convention shall apply to the wounded, 
sick and shipwrecked at sea belonging to the following categories: 

(1) Members of the armed forces of a Party to the conflict, as well as 
members of militias or volunteer corps forming part of such armed 
forces. 

(2) Members of other militias and members of other volunteer corps, 
including those of organized resistance movements, belonging to a 
Party to the conflict and operating in or outside their own territory, 
even if this territory is occupied, provided that such militias or 
volunteer corps, including such organized resistance movements, 
fulfill the following conditions: 

(a) that of being commanded by a person responsible for his 
subordinates; 

(b) that of having a fixed distinctive sign recognizable at a 
distance ; 

(c) that of carrying arms openly; 

(d) that of conducting their operations in accordance with the 
laws and customs of war. 

(3) Members of regular armed forces who profess allegiance to a 
Government or an authority not recognized by the Detaining Power. 

(4) Persons who accompany the armed forces without actually being 
members thereof, such as civilian members of military aircraft crews, 
war correspondents, supply contractors, members of labour units or 
of services responsible for the welfare of the armed forces, provided 
that they have received authorization from the armed forces which 
they accompany. 

(5) Members of crews, including masters, pilots and apprentices, of the 
merchant marine the crews of civil aircraft of the Parties to the 
conflict, who do not benefit by more favourable treatment under 
any other provisions of international law. 

(6) Inhabitants of a non-occupied territory who, on the approach of 
the enemy, spontaneously take up arms to resist the invading forces, 
without having had time to form themselves into regular armed 
units, provided they carry arms openly and respect the laws and 
customs of war. 



201 

ARTICLE 14. All warships of a belligerent Party shall have the right 
to demand that the wounded, sick or shipwrecked on board military hospi- 
tal ships, and hospital ships belonging to relief societies or to private indivi- 

ials, as well as merchant vessels, yachts and other craft shall be surrend- 
ered, whatever their nationality, provided that the wounded and sick are 
in a fit state to be moved and that the warship can provide adequate 
facilities for necessary medical treatment. 

ARTICLE 15. If wounded, sick or shipwrecked persons are taken on 
board a neutral warship or a neutral military aircraft, it shall be ensured, 
where so required by international law, that they can take no further part 
in operations of war. 

ARTICLE 16. Subject to the provisions of Article 12, the wounded, 
sick and shipwrecked of a belligerent who fall into enemy hands shall be 
prisoners of war, and the provisions of international law concerning pris- 
oners of war shall apply to them. The captor may decide, according to 
circumstances, whether it is expedient to hold them, or to convey them to 
a port in the captor's own country, to a neutral port or even to a port in 
enemy territory. In the last case, prisoners of war thus returned to their 
home country may not serve for the duration of the war. 

ARTICLE 17. Wounded, sick or shipwrecked persons who are landed 
in neutral ports with the consent of the local authorities, shall, failing 
arrangements to the contrary between the neutral and the belligerent 
Powers, be so guarded by the neutral Power, where so required by inter- 
national law, that the said persons cannot again take part in operations 
of war. 

The costs of hospital accommodation and internment shall be borne 
by the Power on whom the wounded, sick or shipwrecked persons depend. 

ARTICLE 18. After each engagement, Parties to the conflict shall, 
without delay, take all possible measures to search for and collect the 
shipwrecked, wounded and sick, to protect them against pillage and ill- 
treatment, to ensure their adequate care, and to search for the dead and 
prevent their being despoiled. 

Whenever circumstances permit, the Parties to the conflict shall conclude 
local arrangements for the removal of the wounded and sick by sea from 
a beseiged or encircled area and for the passage of medical and religious 
personnel and equipment on their way to that area. 

ARTICLE 19. The Parties to the conflict shall record as soon as pos- 
sible, in respect of each shipwrecked, wounded, sick or dead person of the 
adverse Party falling into their hands, any particulars which may assist in 
his identification. These records should if possible include: 

(a) designation of the Power on which he depends; 

(b) army, regimental, personal or serial number; 

(c) surname; 

(d) first name or names; 



202 

(e) date of birth; 

(f) any other particulars shown on his identity card or disc; 

(g) date and place of capture or death; 

(h) particulars concerning wounds or illness, or cause of death. 

As soon as possible the above-mentioned information shall be forwarded 
to the information bureau described in Article 122 of the Geneva Con- 
vention relative to the Treatment of Prisoners of War of August 12, 1949, 
which shall transmit this information to the Power on which these persons 
depend through the intermediary of the Protecting Power and of the 
Central Prisoners of War Agency. 

Parties to the conflict shall prepare and forward to each other through 
the same bureau, certificates of death or duly authenticated lists of the dead. 
They shall likewise collect and forward through the same bureau one half 
of the double identity disc, or the identity disc itself if it is a single disc, 
last wills or other documents of importance to the next of kin, money and 
in general all articles of an intrinsic or sentimental value, which are found 
on the dead. These articles, together with unidentified articles, shall be 
sent in sealed packets, accompanied by statements giving all particulars 
necessary for the identification of the deceased owners, as well as by a 
complete list of the contents of the parcel. 

ARTICLE 20. Parties to the conflict shall ensure that burial at sea of 
the dead, carried out individually as far as circumstances permit, is pre- 
ceded by a careful examination, if possible by a medical examination, of 
the bodies, with a view to confirming death, establishing identity and 
enabling a report to be made. Where a double identity disc is used, one 
half of the disc should remain on the body. 

If dead persons are landed, the provisions of the Geneva Convention 
for the Amelioration of the Condition of the Wounded and Sick in Armed 
Forces in the Field of August 12, 1949, shall be applicable. 

ARTICLE 21. The Parties to the conflict may appeal to the charity 
of commanders of neutral merchant vessels, yachts or other craft, to take 
on board and care for wounded, sick or shipwrecked persons, and to collect 
the dead. 

Vessels of any kind responding to this appeal, and those having of their 
own accord collected wounded, sick or shipwrecked persons, shall enjoy 
special protection and facilities to carry out such assistance. 

They may, in no case, be captured on account of any such transport; 
but, in the absence of any promise to the contrary, they shall remain liable 
to capture for any violations of neutrality they may have committed. 

Chapter III. Hospital Ships 

ARTICLE 22. Military hospital ships, that is to say, ships built or 
equipped by the Powers specially and solely with a view to assisting the 



203 

wounded, sick and shipwrecked, to treating them and to transporting them, 
may in no circumstances be attacked or captured, but shall at all times be 
respected and protected, on condition that their names and descriptions 
have been notified to the Parties to the conflict ten days before those ships 
are employed. 

The characteristics which must appear in the notification shall include 
registered gross tonnage, the length from stem to stern and the number of 
masts and funnels. 

ARTICLE 23. Establishments ashore entitled to the protection of the 
Geneva Convention for the Amelioration of the Condition of the Wounded 
and Sick in Armed Forces in the Field of August 12, 1949, shall be pro- 
tected from bombardment or attack from the sea. 

ARTICLE 24. Hospital ships utilized by National Red Cross Societies, 
by officially recognized relief societies or by private persons shall have the 
same protection as military hospital ships and shall be exempt from capture, 
if the Party to the conflict on which they depend has given them an official 
commission and in so far as the provisions of Article 22 concerning notifi- 
cation have been complied with. 

These ships must be provided with certificates from the responsible 
authorities, stating that the vessels have been under their control while 
fitting out and on departure. 

ARTICLE 25. Hospital ships utilized by National Red Cross Societies, 
officially recognized relief societies, or private persons of neutral countries 
shall have the same protection as military hospital ships and shall be 
exempt from capture, on condition that they have placed themselves under 
the control of one of the Parties to the conflict, with the previous consent 
of their own governments and with the authorization of the Party to the 
conflict concerned, in so far as the provisions of Article 22 concerning 
notification have been complied with. 

ARTICLE 26. The protection mentioned in Articles 22, 24 and 25 
shall apply to hospital ships of any tonnage and to their lifeboats, where- 
ever they are operating. Nevertheless, to ensure the maximum comfort and 
security, the Parties to the conflict shall endeavour to utilize, for the trans- 
port of wounded, sick and shipwrecked over long distances and on the 
high seas, only hospital ships of over 2,000 tons gross. 

ARTICLE 27. Under the same conditions as those provided for in 
Articles 22 and 24, small craft employed by the State or by the officially 
recognized lifeboat institutions for coastal rescue operations, shall also be 
respected and protected, so far as operational requirements permit. 

The same shall apply so far as possible to fixed coastal installations used 
exclusively by these craft for their humanitarian missions. 

ARTICLE 28. Should fighting occur on board a warship, the sick-bays 
shall be respected and spared as far as possible. Sick-bays and their equip- 
ment shall remain subject to the laws of warfare, but may not be diverted 



204 

from their purpose so long as they are required for the wounded and sick. 
Nevertheless, the commander into whose power they have fallen may, 
after ensuring the proper care of the wounded and sick who are accommo- 
dated therein, apply them to other purposes in case of urgent military 
necessity. 

ARTICLE 29. Any hospital ship in a port which falls into the hands 
of the enemy shall be authorized to leave the said port. 

ARTICLE 30. The vessels described in Articles 22, 24, 25 and 27 shall 
afford relief and assistance to the wounded, sick and shipwrecked without 
distinction of nationality. 

The High Contracting Parties undertake not to use these vessels for 
any military purposes. 

Such vessels shall in no wise hamper the movements of the combatants. 

During and after an engagement, they will act at their own risk. 

ARTICLE 31. The Parties to the conflict shall have the right to con- 
trol and search the vessels mentioned in Articles 22, 24, 25 and 27. They 
can refuse assistance from these vessels, order them off, make them take a 
certain course, control the use of their wireless and other means of com- 
munications, and even detain them for a period not exceeding seven days 
from the time of interception, if the gravity of the circumstances so requires. 

They may put a commissioner temporarily on board whose sole task 
shall be to see that orders given in virtue of the provisions of the preceding 
paragraph are carried out. 

As far as possible, the Parties to the conflict shall enter in the log of the 
hospital ship, in a language he can understand, the orders they have given 
the captain of the vessel. 

Parties to the conflict may, either unilaterally or by particular agree- 
ments, put on board their ships neutral observers who shall verify the strict 
observation of the provisions contained in the present Convention. 

ARTICLE 32. Vessels described in Articles 22, 24, 25 and 27 are not 
classed as warships as regards their stay in a neutral port. 

ARTICLE 33. Merchant vessels which have been transformed into 
hospital ships cannot be put to any other use throughout the duration of 
hostilities. 

ARTICLE 34. The protection to which hosiptal ships and sick-bays 
are entitled shall not cease unless they are used to commit, outside their 
humanitarian duties, acts harmful to the enemy. Protection may, however, 
cease only after the warning has been given, naming in all appropriate 
cases a reasonable time limit, and after such warning has remained un- 
heeded. 

In particular, hospital ships may not possess or use a secret code for 
their wireless or other means of communication. 

ARTICLE 35. The following conditions shall not be considered as 



205 

depriving hospital ships or sick-bays of vessels of the protection due to 
them: 

(1) The fact that the crews of ships or sick-bays are armed for the 
maintenance of order, for their own defence or that of the sick and 
wounded. 

(2) The presence on board of appartus exclusively intended to facilitate 
navigation or communication. 

(3) The discovery on board hospital ships or in sick-bays of portable 
arms and ammunition taken from the wounded, sick and ship- 
wrecked and not yet handed to the proper service. 

(4) The fact that the humanitarian activities of hospital ships and sick- 
bays of vessels or of the crews extend to the care of wounded, sick 
or shipwrecked civilians. 

(5) The transport of equipment and of personnel intended exclusively 
for medical duties, over and above the normal requirements. 

Chapter IV. Personnel 

ARTICLE 36. The religious, medical and hospital personnel of hospital 
ships and their crews shall be respected and protected; they may not be 
captured during the time they are in the service of the hospital ship, 
whether or not there are wounded and sick on board. 

ARTICLE 37. The religious, medical and hospital personnel assigned 
to the medical or spiritual care of the persons designated in Articles 12 
and 13 shall, if they fall into the hands of the enemy, be respected and 
protected; they may continue to carry out their duties as long as this is 
necessary for the care of the wounded and sick. They shall afterwards be 
sent back as soon as the Commander-in-Chief, under whose authority 
they are, considers it practicable. They may take with them, on leaving the 
ship, their personal property. 

If, however, it prove necessary to retain some of this personnel owing 
to the medical or spiritual needs of prisoners of war, everything possible 
shall be done for their earliest possible landing. 

Retained personnel shall be subject, on landing, to the provisions of the 
Geneva Convention for the Amelioration of the Condition of the Wounded 
and Sick in Armed Forces in the Field of August 12, 1949. 

Chapter V. Medical Transports 

ARTICLE 38. Ships chartered for that purpose shall be authorized to 
transport equipment exclusively intended for the treatment of wounded 
and sick members of armed forces or for the prevention of disease, pro- 
vided that the particulars regarding their voyage have been notified to 



206 

the adverse Power and approved by the latter. The adverse Power shall 
preserve the right to board the carrier ships, but not to capture them or 
seize the equipment carried. 

By agreement amongst the Parties to the conflict, neutral observers may 
be placed on board such ships to verify the equipment carried. For this 
purpose, free access to the equipment shall be given. 

ARTICLE 39. Medical aircraft, that is to say, aircraft exclusively 
employed for the removal of the wounded, sick and shipwrecked, and for 
the transport of medical personnel and equipment, may not be the object 
of attack, but shall be respected by the Parties to the conflict, while flying 
at heights, at times and on routes specifically agreed upon between the 
Parties to the conflict concerned. 

They shall be clearly marked with the distinctive emblem prescribed 
in Article 41, together with their national colours, on their lower, upper 
and lateral surfaces. They shall be provided with any other markings or 
means of identification which may be agreed upon between the Parties 
to the conflict upon the outbreak or during the course of hostilities. 

Unless agreed otherwise, flights over enemy or enemy-occupied territory 
are prohibited. 

Medical aircraft shall obey every summons to alight on land or water. 
In the event of having thus to alight, the aircraft with its occupants may 
continue its flight after examination, if any. 

In the event of alighting involuntarily on land or water in enemy or 
enemy-occupied territory, the wounded, sick and shipwrecked, as well as 
the crew of the aircraft shall be prisoners of war. The medical personnel 
shall be treated according to Articles 36 and 37. 

ARTICLE 40. Subject to the provisions of the second paragraph, medi- 
cal aircraft of Parties to the conflict may fly over the territory of neutral 
Powers, land thereon in case of necessity, or use it as a port of call. They 
shall give neutral Powers prior notice of their passage over the said terri- 
tory, and obey every summons to alight, on land or water. They will be 
immune from attack only when flying on routes, at heights and at times 
specifically agreed upon between the Parties to the conflict and the neutral 
Power concerned. 

The neutral Powers may, however, place conditions or restrictions on 
the passage or landing of medical aircraft on their territory. Such possible 
conditions or restrictions shall be applied equally to all Parties to the 
conflict. 

Unless otherwise agreed between the neutral Powers and the Parties to 
the conflict, the wounded, sick or shipwrecked who are disembarked with 
the consent of the local authorities on neutral territory by medical aircraft 
shall be detained by the neutral Power, where so required by international 
law, in such a manner that they cannot again take part in operations of 



207 

war. The cost of their accommodation and internment shall be borne by 
the Power on which they depend. 

Chapter VI. The Distinctive Emblem 

ARTICLE 41. Under the direction of the competent military authority, 
the emblem of the red cross on a white ground shall be displayed on the 
flags, armlets and on all equipment employed in the Medical Service. 

Nevertheless, in the case of countries which already use as emblem, in 
place of the red cross, the red crescent or the red lion and sun on a white 
ground, these emblems are also recognized by the terms of the present 
Convention. 

ARTICLE 42. The personnel designated in Articles 36 and 37 shall 
wear, affixed to the left arm, a water-resistant armlet bearing the distinctive 
emblem, issued and stamped by the military authority. 

Such personnel, in addition to wearing the identity disc mentioned in 
Article 19, shall also carry a special identity card bearing the distinctive 
emblem. This card shall be water-resistant and of such size that it can be 
carried in the pocket. It shall be worded in the national language, shall 
mention at least the surname and first names, the date of birth, the rank 
and the service number of the bearer, and shall state in what capacity 
he is entitled to the protection of the present Convention. The card shall 
bear the photograph of the owner and also either his signature or his 
fingerprints or both. It shall be embossed with the stamp of the military 
authority. 

The identity card shall be uniform throughout the same armed forces 
and, as far as possible, of a similar type in the armed forces of the High 
Contracting Parties. The Parties to the conflict may be guided by the 
model which is annexed, by way of example, to the present Convention. 
They shall inform each other, at the outbreak of hostilities, of the model 
they are using. Identity cards should be made out, if possible, at least in 
duplicate, one copy being kept by the home country. 

In no circumstances may the said personnel be deprived of their insignia 
or identity cards nor of the right to wear the armlet. In case of loss they 
shall be entitled to receive duplicates of the cards and to have the insignia 
replaced. 

ARTICLE 43. The ships designated in Articles 22, 24, 25 and 27 shall 
be distinctively marked as follows: 

(a) All exterior surfaces shall be white. 

(b) One or more dark red crosses, as large as possible, shall be painted 
and displayed on each side of the hull and on the horizontal 
surfaces, so placed as to afford the greatest possible visibility 
from the sea and from the air. 



208 

All hospital ships shall make themselves known by hoisting their national 
flag and further, if they belong to a neutral state, the flag of the Party to 
the conflict whose direction they have accepted. A white flag with a red 
cross shall be flown at the mainmast as high as possible. 

Lifeboats of hospital ships, coastal lifeboats and all small craft used 
by the Medical Service shall be painted white with dark red crosses prom- 
inently displayed and shall, in general, comply with the identification 
system prescribed above for hospital ships. 

The above-mentioned ships and craft, which may wish to ensure by 
night and in times of reduced visibility the protection to which they are 
entitled, must, subject to the assent of the Party to the conflict under whose 
power they are, take the necessary measures to render their painting and 
distinctive emblems sufficiently apparent. 

Hospital ships which, in accordance with Article 31, are provisionally 
detained by the enemy, must haul down the flag of the Party to the conflict 
in whose service they are or whose direction they have accepted. 

Coastal lifeboats, if they continue to operate with the consent of the 
Occupying Power from a base which is occupied, may be allowed, when 
away from their base, to continue to fly their own national colours along 
with a flag carrying a red cross on a white ground, subject to prior notifi- 
cation to all the Parties to the conflict concerned. 

All the provisions in this Article relating to the red cross shall apply 
equally to the other emblems mentioned in Article 41. 

Parties to the conflict shall at all times endeavour to conclude mutual 
agreements in order too use the most modern methods available to facilitate 
the identification of hospital ships. 

ARTICLE 44. The distinguishing signs referred to in Article 43 can 
only be used, whether in time of peace or war, for indicating or protecting 
the ships therein mentioned, except as may be provided in any other inter- 
national Convention or by agreement between all the Parties to the conflict 
concerned. 

ARTICLE 45. The High Contracting Parties shall, if their legislation 
is not already adequate, take the measures necessary for the prevention 
and repression, at all times, of any abuse of the distinctive signs provided 
for under Article 43. 

Chapter VII. Execution of the Convention 

ARTICLE 46. Each Party to the conflict, acting through its Com- 
manders-in-Chief, shall ensure the detailed execution of the preceding 
Articles and provide for unforeseen cases, in conformity with the general 
principles of the present Convention. 

ARTICLE 47. Reprisals against the wounded, sick and shipwrecked 



209 

persons, the personnel, the vessels or the equipment protected by the Con- 
vention are prohibited. 

ARTICLE 48. The High Contracting Parties undertake, in time of 
peace as in time of war, to disseminate the text of the present Convention 
as widely as possible in their respective countries, and, in particular, to 
include the study thereof in their programmes of military and, if possible, 
civil instruction, so that the principles thereof may become known to the 
entire population, in particular to the armed fighting forces, the medical 
personnel and the chaplains. 

ARTICLE 49. The High Contracting Parties shall communicate to 
one another through the Swiss Federal Council and, during hostilities, 
through the Protecting Powers, the official translations of the present Con- 
vention, as well as the laws and regulations which they may adopt to 
ensure the application thereof. 

Chapter VIII. Repression of Abuses and Infractions 

ARTICLE 50. The High Contracting Parties undertake to enact any 
legislation necessary to provide effective penal sanctions for persons com- 
mitting, or ordering to be committed, any of the grave breaches of the 
present Convention defined in the following Article. 

Each High Contracting Party shall be under the obligation to search 
for persons alleged to have committed, or to have ordered to be com- 
mitted, such grave breaches, and shall bring such persons, regardless of 
their nationality, before its own courts. It may also, if it prefers, and in 
accordance with the provisions of its own legislation, hand such persons 
over for trial to another High Contracting Party concerned, provided such 
High Contracting Party has made out a prima facie case. 

Each High Contracting Party shall take measures necessary for the sup- 
pression of all acts contrary to the provisions of the present Convention 
other than the grave breaches defined in the following Article. 

In all circumstances, the accused persons shall benefit by safeguards of 
proper trial and defence, which shall not be less favourable than those 
provided by Article 105 and those following of the Geneva Convention 
relative to the Treatment of Prisoners of War of August 12, 1949. 

ARTICLE 51. Grave breaches to which the preceding Article relates 
shall be those involving any of the following acts, if committed against 
persons or property protected by the Convention: wilful killing, torture 
or inhuman treatment, including biological experiments, wilfully causing 
great suffering or serious injury to body or health, and extensive destruc- 
tion and appropriation of property, not justified by military necessity and 
carried out unlawfully and wantonly. 

ARTICLE 52. No High Contracting Party shall be allowed to absolve 



210 

itself or any other High Contracting Party of any liability incurred by 
itself or by another High Contracting Party in respect of breaches referred 
to in the preceding Article. 

ARTICLE 53. At the request of a Party to the conflict, an enquiry 
shall be instituted, in a manner to be decided between the interested 
Parties, concerning any alleged violation of the Convention. 

If agreement has not been reached concerning the procedure for the 
enquiry, the Parties should agree on the choice of an umpire, who will 
decide upon the procedure to be followed. 

Once the violation has been established, the Parties to the conflict shall 
put an end to it and shall repress it with the least possible delay. 

Final Provisions 

ARTICLE 54. The present Convention is established in English and 
in French. Both texts are equally authentic. 

The Swiss Federal Council shall arrange for official translations of the 
Convention to be made in the Russian and Spanish languages. 

ARTICLE 55. The present Convention, which bears the date of this 
day, is open to signature until February 12, 1950, in the name of the 
Powers represented at the Conference which opened at Geneva on April 
21, 1949; furthermore, by Powers not represented at that Conference, but 
which are parties to the Xth Hague Convention of October 18, 1907, for 
the adaptation to Maritime Warfare of the principles of the Geneva Con- 
vention of 1906, or to the Geneva Conventions of 1864, 1906 or 1929 for 
the Relief of the Wounded and Sick in Armies in the Field. 

ARTICLE 56. The present Convention shall be ratified as soon as 
possible and the ratifications shall be deposited at Berne. 

A record shall be drawn up of the deposit of each instrument of ratifica- 
tion and certified copies of this record shall be transmitted by the Swiss 
Federal Council to all the Powers in whose name the Convention has been 
signed, or whose accession has been notified. 

ARTICLE 57. The present Convention shall come into force six months 
after not less than two instruments of ratification have been deposited. 

Thereafter, it shall come into force for each High Contracting Party 
six months after the deposit of the instrument of ratification. 

ARTICLE 58. The present Convention replaces the Xth Hague Con- 
vention of October 18, 1907, for the adaptation to Maritime Warfare of 
the principles of the Geneva Convention of 1906, in relations between 
the High Contracting Parties. 

ARTICLE 59. From the date of its coming into force, it shall be open 
to any Power in whose name the present Convention has not been signed, 
to accede to this Convention. 



211 

ARTICLE 60. Accessions shall be notified in writing to the Swiss Fed- 
eral Council, and shail take effect six months after the date on which they 
are received. 

The Swiss Federal Council shall communicate the accessions to all the 
Powers in whose name the Convention has been signed, or whose accession 
has been notified. 

ARTICLE 61. The situation provided for in Articles 2 and 3 shall give 
immediate effect to ratifications deposited and accessions notified by the 
Parties to the conflict before or after the beginning of hostilities or occupa- 
tion. The Swiss Federal Council shall communicate by the quickest method 
any ratifications or accessions received from Parties to the conflict. 

ARTICLE 62. Each of the High Contracting Parties shall be at liberty 
to denounce the present Convention. 

The denunciation shall be notified in writing to the Swiss Federal Coun- 
cil, which shall transmit it to the Governments of all the High Contracting 
Parties. 

The denunciation shall take effect one year after the notification thereof 
has been made to the Swiss Federal Council. However, a denunciation of 
which notification has been made at a time when the denouncing Power 
is involved in a conflict shall not take effect until peace has been con- 
cluded, and until after operations connected with the release and repatria- 
tion of the persons protected by the present Convention have been termi- 
nated. 

The denunciation shall have effect only in respect of the denouncing 
Power. It shall in no way impair the obligations which the Parties to the 
conflict shall remain bound to fulfil by virtue of the principles of the law 
of nations, as they result from the usages established among civilized 
peoples, from the laws of humanity and the dictates of the public con- 
science. 

ARTICLE 63. The Swiss Federal Council shall register the present 
Convention with the Secretariat of the United Nations. The Swiss Federal 
Council shall also inform the Secretariat of the United Nations of all 
ratifications, accessions and denunciations received by it with respect to 
the present Convention. 

IN WITNESS WHEREOF the undersigned, having deposited their 
respective full powers, have signed the present Convention. 

DONE at Geneva this twelfth day of August 1949, in the English and 
French languages. The original shall be deposited in the Archives of the 
Swiss Confederation. The Swiss Federal Council shall transmit certified 
copies thereof to each of the signatory and acceding States. 

[Annex, containing form of Identity Card for members of Medical and 
Religious Personnel Attached to the Armed Forces at Sea, is omitted.] 



SUBJECT INDEX 
A 

Aboukir (Br.), 4n 

Adams, Pres. John, 183n 

aerial bombardment, 8, 153, 154, 155, 165, 175, 176, 178, 179-80 

aerial warfare, v, 3 In, 87, 89n, 90, 121, 153 

Africa, 84, 140 

aircraft, 2n, 10, 29, 30, 41, 48n, 51, 56, 58, 59, 75n, 84, 85, 114, 114n, 

115, 122, 124, 135, 137, 138, 140, 143, 151, 155n, 168n, 176, 178, 

180, 184, 184n, 188. See airships, neutral aircraft, 
aircraft carrier, 3, 114n, 175, 184n 
airplane, 13, 154, 175 
airships, 4, 154, 155 
Alexander, Mr., 44 
Allies, 4, 22, 30, 35, 50, 60, 61, 66nn, 70, 81n, 88, 104, 107, 109, 111, 116, 

120, 125, 126, 130, 131, 139, 140, 141, 161, 163, 180 
Anglo-German Naval Agreement (1935), 36n 
antisubmarine activities, 107 
antisubmarine forces, 39, 44 
antisubmarine measures, 4, 6, 105 
antisubmarine rocket (SUBROG), 8 
antisubmarine warfare, 5, 9, 9n, 37, 114 
Anzilotti, Judge (Int'l Court), 118 
area of operation, v, 27, 55-96. See battle zone, combat zone, operational 

area, operational zone, war zone, 
area of war, 62, 62n, 63 
Argonaut (U.S.), 160n 
armaments, 31, 36, 39, 41, 46, 67, 67n, 99, 108, 109, 110, 111, 11 In, 112, 

113, 120, 122, 142, 158, 182 
armed conflict, 18, 25, 113n 
arms, 107, 157, 160, 168 
Arnold-Foster, Mr., 104 
Ascension Island, 84, 85 
Asia, 126 
Asia Minor, 59n 

Asquith, Prime Minister, 91, 92n 
Atlantic Ocean, 37, 68n, 119, 136 

213 



214 

Atlantic War, 121. See Undeclared Atlantic Naval War. 

Atlantis (Ger.), 136 

atomic bomb, 13, 24, 172, 179 

atomic warfare, 188 

atomic weapons, 25, 173, 180, 187 

Australia, 142 

Austria, 35 

Austria-Hungary, 32, 33, 104 

auxiliaries, 86, 106, 109, 122, 123, 183 

Awa Maru (Japan), 126 

Axis Powers, 164 

B 

Baldwin, Prime Minister, 47 

Balfour, Mr., 39, 40, 41 

balloon, 153, 154, 155, 176n 

Baltic Sea, 70n 

Bar along (Br.), 142n 

barbarity, 46 

Battle of the Coral Sea, 175 

battleships, 34, 44n, 124, 161 n, 175, 185, 185n 

battle zone, 124 

Bay of Biscay, 138 

Bayard, Chevalier, 152 

Behrens, Miss., 130, 131 

Belgium, 33 

belligerents, 10, 11-12, 16, 18, 20, 23, 24, 26, 27, 42, 47, 52n, 55, 56, 56n, 
57, 58, 59, 59n, 60, 61, 61n, 63, 64, 65, 66nn, 67n, 68, 68n, 69n, 70, 72, 
73, 74, 74nn, 76, 77, 78, 81, 82, 83, 86, 87, 91, 93, 94, 95, 97-149, 113n, 
121n, 151-189, 157n 

Berlin, 66n 

Betio Island, Tarawa Atoll, 165 

biological warfare, 161-167, 162n 

biological weapons, 151n, 161-167, 166n, 171, 172, 181, 185-187 

Biorklund, Admiral, 143n 

blacklist, 61, 68n 

blockade, 13, 57n, 59nn, 60n, 66, 66n, 69, 69n, 70, 70n, 73, 73nn, 78, 83, 
87, 92, 102, 103, 104, 127. See close-in naval blockade, economic block- 
ade, long-distance surface naval blockade, "paper" blockade, quarantine 
interdiction blockade. 

bombardment, 6, 53, 98, 140, 160n, 175, 176, 176n, 178, 184, 185n. See 
aerial, naval, nuclear, strategic bombardment. 

bombs, 85, 154, 157, 163, 177, 178, 179, 181, 187. See atomic bomb. 



215 



Borchard, Prof., 117 
British Empire, 37, 39, 130 
British Isles, 75, 76, 78 
British Military Court, 30 
British Reprisals Order, 78n 
Brussels (Br.), 35 
Buehrig, Prof., 64n, 74n 
Bulgaria, 33, 35, 49n 
Burke, Admiral, 26, 26n 



Cameroons, 59n 

Canada, 15n, 52n 

capital ships, 36, 38, 40, 158 

capture, 10, 15, 16, 18, 29, 30, 31, 34-36, 42, 66n, 73n, 83, 99-101, 102, 
103, 104, 105-106, 106-123, 106n, 122n, 123n, 124, 125, 126, 128, 129- 
132. See visit, search, and capture. 

cargo (goods), 4, 16, 59, 62, 68n, 81n, 100, 101, 104, 105, 106, 112, 113, 
123, 131. See goods, provisions, supplies, wares. 

cargo ship, 37, 63, 123, 142 

cargo submarines, 3, 6, 145n 

cartel ships, 126 

Carthage, 98 

Central America, 61 

Central Powers, 35, 64, 65 

Ceylon, 142 

chemical warfare, 161-167, 161n 

chemical weapons, 151n, 161-167, 166n, 171, 172, 181, 185-187 

China, 164 

chivalry, 16, 16n 

Churchill-Roosevelt Agreement, 49n 

Churchill, Winston, First Lord of the Admiralty, 34, 106n 

civil wars, 25 

Clark, General Mark, 186 

close-in naval blockade, 57, 59, 59n, 94, 103, 127. See long distance sur- 
face naval blockade. 

coastal fishing boats, 15, 16, 62n, 90n, 126-128 

collective defense, vi, 95n 

Colombos, Mr., 71, 92 

U.S.S. Colorado, 161n 

combatants, v, 9, 10-11, 12, 27, 29-54, 29n, 30n, 35n, 49n, 51n, 55, 97, 
98, 105, 113, 116, 119n, 121, 124, 132, 133, 144, 145, 151, 153, 155, 
155n, 156, 156nn, 159, 172, 173n, 175 



216 

combat zone, 72, 75, 75n, 76, 83. See battle, war zone. 

commander, 12, 12n, 50, 85, 87, HOn, 133, 134, 135, 138, 139, 140n, 141, 

149, 160. See officer, military. 
Continental Shelf, 10 

contraband, 65, 69n, 78, 81n, 102, 103, 108, 112, 113n, 127, 131 
contraband — absolute, 57, 66, 103, 104 
contraband — conditional, 57, 66, 103, 104 
contraband list, 57, 103, 104, 113, 11 3n 
control, See public control, 
conventional international law, 1, 12n, 13, 15, 165, 166, 168, 169, 171, 

173, 176, 184 
convoy, 4, 5, 9, 18, 80, 81n (truck), 103, 107, 107n, 113, 114n, 115, 116, 

117, 122, 142, 145 
Coolidge, Pres., 43 
Cressy (Br.), 4n 
Crimean War, 102 
cruisers, 4n, 43, 106, 136 
Cuba, 95, 96n, 129 
customary international law, 1, 12n, 13, 14, 15-16, 21, 25, 29n, 74, 91, 

117n, 126, 127, 129, 165, 165n, 166, 166n, 168, 169, 172, 173, 177, 182 

D 

Dakar, 84 

Davisian (Br.), 133 

de Bon, Admiral, 38-39, 40 

defoliation agent, 165n 

de Menthon, M., French Chief Prosecutor, 23, 23n 

Denmark, 33 

depth charge, 116, 134, 174 

destroyers, 3, 4, 8, 34, 44, 49n 

Deutschland (Ger.), 3 

Devonshire (Br.), 136 

dirigibles, 154, 176 

disarmament, vi, 31, 36-47, 52, 155n 

Donitz, Admiral, 22, 50, 75, 77, 81, 81n, 82, 84, 85, 85n, 86, 87, 88, 115, 

115n, 116, 117, 130, 135, 136, 137, 138, 140, 140n 
dual-powered submarine, 2-6, 9 

E 

Eck, German Captain, 140, HOn, 141nn 
economic blockade, 60n 

economic warfare, 13, 56-61, 56n, 60n, 6 In, 64, 71, 72, 74, 78n, 81, 8 In, 
82, 82n, 87, 89, 93, 93n, 104, 130, 131, 132n 



217 

economy of force, 20, 184 

Egypt, 49n 

Einsatzgruppen, 179 

embargo, 61 

Empire Dawn (Br.), 133, 134 

enemy merchant shipping, 121, 147 

enforcement, 19, 20, 42, 57, 60, 61, 62, 63, 65, 70, 72, 77, 83, 84, 90, 91n, 

92, 95n, 130, 131, 132, 144, 171, 171n, 177, 178. See sanction. 
English Channel, 62, 116 
Entente allies, 64 
Entente Powers, 64 
Essen, 104 
Ethiopia, 164 

Europe, 61, 68n, 75, 161, 179 
Evans, Sir Samuel, 19n 

Exploration and Use of Outer Space, Treaty of (U.N. 1966), vi 
explosives, 31, 32, 74n, 104, 153, 153n, 155, 161, 167, 167n, 169, 170, 174, 

175, 178, 180, 188n 
exports, 57, 61 



Far East, 34n 

Farragut, Admiral, 158, 158n 

F.E.I.M.T., xiii, 89n, 142. See I.M.T. (1946). 

Feliciano, Dr., 157n, 169, 173, 182n 

Fenwick, Prof., In 

firearms, 32, 74n, 152 

flamethrowers, 165, 186 

fleet ballistic missile submarine, 8, 9, 52, 153, 161, 174, 175, 181n 

foodstuff, 66, 112 

France, 8n, 15n, 33, 36, 37, 38, 39, 40, 41, 43, 45, 46, 47, 49n, 52, 65, 75, 

80n, 102, 109, 119, 119n, 154, 155, 183n 
freedom of the seas, 49, 92, 93, 93n 
free goods, 57, 103, 104 
free ships, free goods, 102 
Fryatt, Captain, 35, 51 
future war, vi, 9-10, 14, 28n, 45, 91-93, 143-146, 145n, 155, 173, 173n, 

174, 175, 178 



Garner, Prof., 35, 35n, 69, 144, 156, 156n 

gas, 157n, 163n, 164, 164nn, 165n, 166, 186. See poison, mustard, nerve, 
tear gas, Tabun, Sarin. 



218 

Gas Protocol, Geneva (1925), 163, 163n, 165, 166, 170, 186 

gas warfare, 164, 165 

general war, v, 1, 27, 28, 28n, 41, 52, 56-61, 61-92, 91-93, 95n, 105-146, 
143-146, 143n, 155-181, 173n, 174 

Geneva, 13 

Geneva Convention — Territorial Seas (1958), 128 

Geneva Convention— War Victims (1949), 13, 14, 20, 25, 31, 51, 51n, 84, 
143 

Geneva Naval Conference (1927), 43 

Geneva Sea Convention (1949), xiii, 14, 20, 51, 56n, 124, 125, 128n, 134, 
138 

Gentili, 169 

German East Africa, 59n 

German Prize Law of 1939, 77, 115 

German Supreme Prize Tribunal, 82n 

Germany, 2n, 3, 4, 4n, 5, 5n, 9, 9n, 15, 15n, 20, 21, 21n, 22, 23, 30, 32, 
33, 34, 35, 35n, 37, 38, 39, 44, 49, 49n, 50, 51, 51n, 58, 58n, 59, 60, 61, 
62-86, 62n, 63n, 64nn, 65n, 66nn, 67nn, 70n, 73n, 80n, 87, 88n, 89, 
90, 104, 107, 107n, 108, 109, 110, HOn, 111, 11 In, 112, 113n, 115, 115n, 
116, 119, 121, 123n, 125, 133, 133n, 134, 135, 136, 137, 138, 139, 141n, 
142n, 144, 154, 155, 156n, 159, 163 

Germany — East, 50 

Germany — Federal Republic, 50 

goods, 56, 57, 58, 70, 101-103, 103-105, 131. See cargo (goods), exports, 
foodstuff, free goods, neutral goods, provisions, supplies, wares. 

Goring, Marshal, 5 In 

Gradisca (Ger.), 125 

grant quarter, 133, 134, 135 

Gray, Justice, 126 

Great Powers, 32 

Greece, 23, 33, 49n, 140 

Greek fire, 158 

Greer (U.S.), 49, 49n 

Grotius, Hugo, 152 

Grotius interdiction, 93n, 152 

gunfire, 21, 58, 72, 73, 106, 133, 142, 161, 165, 169, 176, 184, 185, 185n 

guns, 3, 31, 46, 47, 104, 110, 116, 134, 158, 160, 160n, 161n, 170, 185n 

H 

Hague, 13 

Hague Convention IV of 1907, 13, 72 

Hague Convention IV of 1907 — Regulations Annexed to, lOln, 152, 157, 
168, 176 



219 

Hague Convention VIII (1907), 14, 34, 72, 158, 159 

Hague Convention IX (1907), 14, 72, 160, 161 

Hague Convention X (1907), 124, 125, 138 

Hague Convention XI (1907), 14, 72, 127 

Hague Convention XIII (1907), 14, 72 

Hague Gas Declaration, 162, 163 

Hague Peace Conference (1899), 31-33, 72, 153, 154, 155, 162 

Hague Peace Conference (1907), 31, 33-34, 153, 154, 155, 159 

Hague Roles of Aerial Warfare (1923), 176, 178 

Halperin, Prof., 52 

hand grenades, 21, 139, 140, 165 

Hanihara, Mr., 43n 

Hartenstein, Captain, 84, 85, 86 

Havana, 15, 126 

Hawaii, 89n 

Hay/ Secretary of State, 32 

Heligoland Bight, 5 

Herodotus, 2 

Higgins, Prof., 113n 

high seas, 2, 11, 18n, 34, 35, 49, 50, 51, 55, 56, 57, 58, 59, 61, 62, 63, 69, 

69n, 75, 84, 86, 100, 106, 107, 111, 141 
Hiroshima, 178 
Hogue (Br.), 4n 

Holland (Netherlands— Dutch), 30, 33, 61, 62, 87n 
Holy See, 15 
Hong Kong, 126 

hospital ships, 37, 88, 124-125, 141n 
hospital zone, 84 

Hughes, Secretary of State, 36, 38, 39, 40, 43n 
humanitarian, 1, 10, 23, 24, 25, 33, 71, 77, 77n, 86, 88, 125, 137, 161, 

165, 168, 169, 170, 186 
humanity, v, vi, 16, 17, 18, 18n, 19, 19n, 20, 28, 39, 44, 44n, 45, 48, 67n, 

70, 84, 85, 93, 97, 107, 109, 123, 126, 127, 132, 138, 140, 143, 144, 145, 

146, 149, 156, 177, 181, 184, 185 
Hungary, 35 
Hyde, Prof., 68n, 69n, 120n, 156 



Iceland, 49, 59n 
immune enemy ships, 123-129 

immunity, 16, 56, 68, 72, 84-86, 101, 105, 108, 117, 120, 123, 126, 128, 
137 



220 

I.M.T., xiii, 15, 22, 23, 23n, 50-51, 76, 77, 80, 81, 82, 83, 86, 87, 87n, 88, 
92, 94n, 115, 115n, 116, 117, 117n, 119, 130, 135, 136, 137, 138, 140n, 
141, 141n. See F.E.I.M.T. 

I.M.T. at Nuremberg, Charter of, 179 

Inchon, 185 

innocent merchant, 108 

innocent passage, 128 

inspection procedures, 163n, 166 

internal waters, 56 

International Committee of the Red Cross Draft Rules (1956), 178, 181 

International Court, 118 

international inspection, 52n 

international law, 1-28, 20n, 24n, 29, 39, 41, 42, 48, 49, 51, 55, 63, 64, 65, 
69, 71, 78, 79, 96n, 98, 101, 105, 105n, 108, 110, 113n, 117, 117n, 132n, 
133n, 141 n, 143, 145n, 151, 177, 180. See conventional international law, 
customary international law. 

international law — treaty, 1, 13, 15, 117n 

International Signal Code — IDKCA, 129 

Iowa (U.S.), 185n 

Ireland, 62 

Italy, 15n, 32, 33, 36, 38, 40, 43, 46, 49, 50, 65, 80n, 84, 85, 119, 164 



Japan, 2n, 5, 6, 6n, 15n, 24, 29n, 32, 33, 36, 38, 40, 43, 43n, 46, 50, 80n, 
87, 88, 89, 89nn, 90, 90n, 119, 121, 122, 126, 142, 143, 143n, 145n, 158, 
163, 164, 165, 179, 185, 185n 

Jean Nicolet (U.S.), 142, 142n, 143 

Jellicoe, Admiral, 4, 5 

Johnson, Pres. Lyndon B., 166n, 183 

K 

Kattegat, 86, 87, 89 

Keith, Prof., 69n 

Kellogg-Briand Pact (1928), 23 

Kiauchau (in China), 59n 

Korean War, 24, 26, 52, 94, 127, 168n, 183, 185, 188 

Kranzbuhler, Flottenrichter, 75, 77, 78, 79, 80, 82-84, 115n, 116 

Kuenne, Prof., 6, 173 



Laconia (Br.), 84, 85, 137, 140 



221 

Laconia order, 85n, 137, 138, 139, 140, 141nn 

land- or space-based launching, 151, 151 n, 176 

Lansing, Secretary of State, 108, 109 

Latern Council of the Roman Church, 2d (1139), 152 

Lauterpacht, Prof., 22, 49, 69n, 70, 71, 82, 97, 117n, 144, 172, 177 

Lawrence, Lord Justice, 82-83 

laws of war, v, vi ; 1, Inn, 10, 12, 12n, 12-22, 20n, 22-25, 35, 39, 42, 45, 

65, 71n, 97, 177 
League of Nations, 36 
Lee, Lord, 36-37, 38 
Leygues, Mr., 45 
Lieber, Prof. Francis, 25n 
lifeboats, 79, 84, 85, 109, 118, 134, 135, 137, 138, 139, 141n, 143n. See 

rubber boats 
Limitation of Naval Armament, Treaty of (1930), See London Naval 

Treaty (1930). 
Limited Nuclear Test Ban Treaty (1963), vi 
limited war, v, vi, 1, 25-28, 28n, 52-53, 93-96, 127, 132, 146-149, 165, 

181-189, 182n, 184nn 
London, 45, 109, 177 

London, Declaration of (1909), 104, 105, 108, 113, 153, 154 
London Naval Conference, xiv, 43, 44n, 47 
London Naval Treaty (1930) (Treaty for the Limitation and Reduction 

of Naval Armament), 14, 43-47, 48, 50, 77n, 79, 79n, 80, 118, 118n, 

119, 119n 
London Naval Treaty (1936), 47 
long distance surface naval blockade, v, 1, 20, 57, 59-60, 64, 66, 68, 70, 

70n, 71, 71n, 73, 74, 76, 81, 91n, 94, 112, 144. See close-in naval block- 
ade. 
Lulu (atomic depth charge), 174 
Lusitania (Br.), 63, 64n, 68n, 107, 111, 11 In, 144n 

M 

machine guns, 140, 186 
Mahan, Admiral, 55, 162 
maritime warfare, 69, 69n 
Marshall, Chief Justice, 98 
McDougal, Prof., 157n, 169, 173, 182n 
Mediterranean, 47, 65 
Medlicott, Prof., 60, 81, 9 In, 141 n 
merchant marine, 5, 51, 90, 133, 147 

merchantmen, 5, 63, 66, 66n, 67, 73n, 88, 90, 99, 106, 109, 110, 111, 11 9n, 
120 



222 

merchant ship, 2, 2n, 4, 5, 8, 11, 18, 21, 29n, 35, 35n, 38, 41, 42, 47, 48, 
50, 51, 51n, 58, 59, 60, 62, 63, 66, 66n, 67, 68n, 72n, 73n, 75, 76, 78n, 
79, 80, 81, 82, 86, 89n, 90n, 98, 99, 100, 101, 102, 103, 104, 105, 106, 
107, 107n, 108, 109, 110, HOn, 111, 112, 113, 113nn, 114, 114n, 115, 
116, 117, 117n, 118, 119-120, 121, 121n, 122, 126, 129, 130, 131, 132, 
133, 135, 140, 142, 143n, 144, 145, 146, 147, 148, 149, 184. See neutral 
merchant ship. 

merchant shipping, 4, 5, 6, 37, 62n, 78n, 114, 122, 145, 159. See enemy 
merchant shipping, neutral merchant shipping. 

merchant shipping — Allied, 4, 5, 6, 68n, 82 

merchant vessel submarine, 3, 145 

military advantage, 157, 159, 162, 164, 166, 179 

military efficiency, v, 16, 27, 38, 59n, 70, 72, 73, 78, 93, 95,^109, 132, 148, 
153, 155, 158, 159, 162, 168, 169, 170, 174, 175, 179, 181, 182, 186, 
188. See economy of force. 

military mission, 137 

military necessity, 16, 17, 18, 18n, 19, 95, 97, 101, 107, 123, 127, 137, 
138, 140, 144, 147, 149, 156, 160, 182, 182n, 185 

military objective, 17, 20, 133, 147, 156, 160, 161, 162, 170, 175, 176-177, 
178, 178n, 179, 180, 182, 184, 188 

military officers, See officers, military. 

military utility, 12, 144 

mine barrage, 68, 68n, 159. See North Sea Mine Barrage. 

minelayer submarine, 3 

mines, 3, 5, 34, 56, 59, 62n, 67n, 68n, 76, 127, 129, 129n, 151, 155, 158, 
160, 183 

mining ships, 128 

mining warfare, 159 

missiles, 95, 96n, 129, 161. See Polaris missiles. 

Missouri (U.S.), 185n 

Mobile Bay, 158 

modern war, 71, 104 

Moehle, German submarine flotilla commander, 139, 141n 

Morison, Prof., 80n 

munitions, 63 

mustard gas, 165 



N 



Nagasaki, 178 
Narwhal (U.S.), 160n 
National Red Cross Societies, 125 
Nautilus (U.S.), 7, 160n 



223 

naval warfare, v, 1, 2, 5, 10, 11, 19, 19n, 20, 21, 22, 28n, 29, 32, 38, 50, 56, 
60, 62, 66, 67, 70, 71-72, 75, 90, 91n, 98-105, 107, 112, 126, 134, 152, 
157, 158, 173-175 

navicert system, 73, 81, 8 Inn, 131, 132n. See ship's warrant. 

Nazi murders, 23, 24n, 30, 164, 172 

Nepal, 15n 

nerve gas, 164 

neutrality, 27n, 74n, 82 

neutral merchant shipping, 4, 5, 11, 63, 65, 67n, 68n, 75, 77, 83, 89, 160 

neutral merchant ships, 35n, 68n, 81, 82, 86, 89, 104, 129-132, 148 

neutral ships, 56, 62n, 65, 69, 70, 77, 79, 81, 81nn, 86, 87, 88, 89, 102, 
103-105, 108, 130, 131, 132, 137 

neutral states, 10, 11, 27, 27n, 30, 52n, 55, 56, 56nn, 57, 58, 59n, 60, 61, 
61n, 62, 62n, 63, 64, 64n, 65, 66n, 67, 67n, 68, 68nn, 69, 69n, 70n, 73, 
74, 74n, 75, 76, 77, 78, 79, 81, 86, 87n, 89n, 94, 95, 95n, 100, 103, 105n, 
109, 110, 112, 113n, 116, 125, 129, 130n, 131, 132, 162, 174, 175 

New Jersey (U.S.), 185n 

Nimitz, Admiral, 87, 88, 89n, 90, 136, 138, 149 

noncombatants, 12, 16, 16n, 37, 66, 97, 98, 98n, 112, 133n, 144, 156 

nonnuclear submarine, 8 

North Korea, 127, 128 

North Sea, 62, 62n, 67, 68n 

North Sea Mine Barrage, 5, 159 

Norway, 62, 62n, 68, 68n, 86 

nuclear-armed submarine, 6, 52, 145 

nuclear attack submarine, 8, 9, 143, 145, 147, 148 

nuclear deterrence, vi, 18 In 

nuclear submarine, 4n, 6-9, 52, 92, 93, 128, 145, 148, 174 

nuclear weapons, 8, 9, 27, 28n, 52, 91, 91n, 143, 143n, 151, 151n, 164, 
167-181, 171n, 173n, 177n, 178n, 180n, 182, 182n, 184, 187-89 

Nyon, 47 

The Nyon Agreement (1937) , 47-49, 48n, 49n, 94, 94n 

Nyon Supplemental Agreement (1937), 48n 

o 

O'Brien, Prof., 165, 166, 166n, 167n, 182n 

oceangoing submarine, 3 

oceanography, lOn, 128 

Odenwald (Ger.), 107n 

officers, military, v, 2n, 12, 12n, 21, 22, 29, 30, 34, 99, 100, 126, 131, 134, 

138, 139, 141, 141n, 142. See commander. 
Ohlendorf, 179n 



224 

operational area, 7, 11, 57, 60, 61, 63, 64, 64n, 66, 67, 69n, 72, 73, 74, 80, 

88n, 90, 90n, 93, 95-96. See area of operation, 
operational necessity, 138, 139, 140, 141 
operational zone, 64, 75, 79, 80 
Orkney Islands, 63, 68 
Osgood, Prof., 146, 187 



Pacific Ocean, 5, 89n, 119, 121, 138, 161 

Pacific War, 5, 91n, 121, 122, 161n, 184 

"paper" blockade, 59, 59n, 77n 

Paquete Habana (Cuba), 15, 126, 127 

Paris, (Declaration of (1856), 102, 103, 105, 108, 152, 153 

Paris, Pact of (1928), 22 

passenger ship, 37, 63, 65, 11 In, 120 

Peleus (Greek), 139, 140, 141, 141n, 143 

Persia, 33 

Pierce, Pres., 153 

piracy, 37, 42, 43n, 48, 48nn, 49, 50, 98, 99, 152 

pirate, 41-43, 48, 66, 66n, 98, 110 

Plain meaning, 80, 80n, 118, 118n, 186, 186n. Also called mechanical 

interpretation, 
poison, 152, 169, 170, 176 
poison gas, 162, 163, 164, 165n, 170, 186 
Polaris missiles, 8, 9, 161, 175, 175n, 176 
Port Arthur, 34 

Portsmouth, Treaty of (1907), 33 
Portugal, 33 
prenuclear submarine, 3 
prisoners of war, 10, 12, 16n, 24, 29, 30, 31, 34, 35, 51, 84, 85, 125, 126, 

143, 149, 186 
privateering, 98, 99, 102, 107n, 152 
privateers, 98, 102 

prize, 16, 103, 105, 105n, 108, 109, 126 
prize court (proceedings), 100, 101, 104, 106 
prize crew, 109, 123 

Proces- Verbal of 1936, See Submarine Protocol, 
projectiles, 99, 153, 157, 158, 163, 168 
provisions, 136, 138 
public authorization, 10, 29, 29n, 30, 31 
public control, 10, 18n, 29, 29n, 30, 31, 77, 83, 84, 92, 101, 113, 114, 125, 

131, 162, 167, 181, 184, 187. Also called control, military control. 
Python (Ger.), 136 



225 



Q-ships, 5, 67, 67n, 105, 142, 142n, 143n 
quarantine-interdiction limited blockade, 95, 129 

Queen Elizabeth (Br.), 120 
Queenfish (U.S.), 126 
Queen Mary (Br.), 120 

R 

radiation, 168, 169, 170, 174n, 180, 180n, 181, 189 

radioactive fallout, 168, 169, 170, 188n 

ram, 5, 35, 51, 58, 66n, 89, 116, 143n. Also called ramming. 

rapid missile delivery system, 8, 25, 177 

reciprocity, 12, 19, 23, 24, 113, 164n 

Red China, 127 

reprisals, 12n, 19, 19n, 20, 21, 60, 65, 66, 66n, 68, 68n, 69, 69n, 70, 78, 

104, 123, 138, 163, 167, 167n, 172, 173. See retaliation, 
rescue, 11, 37, 84, 85, 86, 134, 135, 136, 137, 138, 139, 140, 143, 149 
rescue zone, 84-86, 137 
research ships, 128 
research submarine, 128, 129 
retaliation, 19n, 62, 62n, 65, 67n, 68n, 79, 90, 91, 95n, 167, 172, 188. See 

reprisals. 
Richmond, Admiral, 145 
Rickover, Admiral, 119n 
Robert, Admiral, 47 
Rome, 98 

Roosevelt, Pres. Franklin D., 49, 83, 164 
Roosevelt, Pres. Theodore, 33, 34 
Root, Mr., 41, 43n, 118 
Root's resolution, 42, 43, 117n, 118 
Roskill, Captain, 84, 85, 114, 114n, 115n 
Rothschild, General, 161, 161 n, 165 
Roumania, 33, 49n 
Royse, Dr., 39, 72, 152, 155, 156n 
rubber boats, 136, 137. See lifeboats. 
Russia, 31, 32, 33, 34n, 52, 89, 95, 102, 129, 154 
Russia— Soviet Union, 8, 13n, 15n, 49n, 52, 59n, 80n, 89, 91n, 93n, 95, 

96n, 127 (Russia), 148n, 172, 179, 183, 184n 
Russo-Finish War (1939), 59n 
Russo-Japanese War (1904-1905), 33, 34, 159, 160n 



St. Petersburg, Declaration of (1868), 153, 168, 169 



226 

Salonica, 125 

salvo, 133, 134 

sanction, vi, 11, 12, 18, 19-22, 19n, 23, 38, 47, 60, 73, 73nn, 130, 132n, 
136, 166, 168, 171, 171 nn, 177, 181. See enforcement. 

Sarin, 164 

Sarraut, Mr., 40 

Saudi Arabia, 15n 

Scandinavia, 61, 70n 

Schanzer, Senator, 41, 42 

Scheer, Admiral, 66n 

Schelling, Prof., 164n 

Schwartzberger, Dr., 169, 170 

Scotland, 62 

Scott, Prof., 176n 

screening smoke, 161 

Scyllias of Scion, 2 

search, 11, 59, 68n, 73, 108, 125, 135. See visit and search; visit, search 
and capture. 

search and rescue, 11, 37 

Serbia, 33 

Seymour, Pres., 92n 

Shawcross, Sir Hartley, 77n 

shells, 104, 155, 162, 187 

Shetland Islands, 59n, 62 

shipping, 9, 62, 76, 83, 159. See enemy merchant shipping, neutral mer- 
chant shipping. 

ship's papers, 48, 79, 100, 102, 118 

ship warrants, 81, 8 In, 82, 82n, 130, 131 

shrapnel, 153n, 155 

Siam, 33 

Sims, Admiral, 107n 

Sinai-Suez area, 148n 

Singapore, 126 

Singh, Dr., 168 

Skagerrak (Jutland), 86, 87, 88, 89, 178 

Smith, Rear Admiral, 127 

Smith, Prof. H. A., 108 

social control, 171 

South America, 61 

Southeast Asia, 185n 

space launching, See land- or space-based launching. 

Spaight, Dr., 156, 169, 180 

Spain, 33, 47, 48 



227 

Spanish- American War, 15, 126 

Spanish Civil War, 47-48 

Special Warning No. 32, 129 

Spraunce, Admiral, 5n 

states, See belligerents, neutrals. 

Stimson, Secretary of State, 45 

Stockton, 104n 

Stone, Prof., 69n, 17 In 

Straits of Dover, 5 

strategic bombardment, v, 8, 98, 153, 173, 175-181 

Struble, Admiral, 185 

submarine operational area, V, 7; 11, 20, 55-96, 74n, 87n, 89n, 91n, 93n, 

105, 106, 116, 117, 130, 132, 159 
submarine position reports, 80, 89, 114, 115, 116, 117, 120, 123 
Submarine Protocol of 1936 (embodies art. 22 of London Naval Treaty — 

1930, and also called Proces- Verbal of 1936), xv, 14, 47, 48, 50, 77, 77n, 

79-81, 79, 79n, 80n, 82, 88, 94, 115-122, 117n, 118n, 130, 135, 137, 

145, 147, 148, 184 
submarines, See cargo, dual-powered, fleet ballistic missile, merchant, mine- 
layer, nonnuclear, nuclear, nuclear-armed, nuclear attack, oceangoing, 

prenuclear, research, 
submarine torpedo boats, 32, 33 

The Submarine Treaty (1922), 41-43, 48, 117n, 119, 119n, 163 
submarine warfare, v, 1-28, 35, 38, 39, 41, 46, 50, 58, 59, 63, 71, 72, 77, 

87, 88, 89, 89n, 90, 91, 108, 109, 115, 115n, 116, 117, 121, 134, 135, 

136, 144, 145, 145n, 146, 151 
submarine warship, 2, 48, 52, 58, 72, 105, 112, 118, 124, 129, 153, 158, 

175-176 
supplies, 60, 126, 130, 147 
surface raider, 133, 133n, 134, 135, 136 

surface ships, 8, 45, 46, 72, 79, 105, 115, 117, 119, 124, 134, 183 
surface torpedo ship, 3, 34 
surface warfare, v, 59, 71, 72, 91 
surface warships, 1, 2, 4, 6, 8, 9, 31, 45, 48, 48n, 53, 56n, 58, 62, 63, 70, 72, 

73, 99, 117-118, 123n, 136, 151, 158, 176 
Surigao Strait, 158 

surrender, 21n, 35, 99, 115, 125, 133, 134, 144, 184, 185n 
survivors, 11, 18, 18n, 21, 84, 85, 90, 116, 134-139, 139-143, 141n, 142n, 

143n, 149 
Sussex (Br.), 107n 
Sweden, 143n 
Sweden-Norway, 33 
Switzerland, 15n, 33 



228 



Tabun, 164 

Takarabe, Admiral, 46 

Taylor, General, 187 

tear gas, 165, 186 

technology, 13, 15, 31, 70, 71, 72, 73, 78, 102, 106, 152, 160, 176, 180n, 

186 
territorial waters, 55-56, 56n, 68n, 92, 100, 106, 128 
terrorization, 72, 97, 98, 177, 177n 

thermonuclear weapons, 52, 151, 151 n, 167, 174, 175, 184, 187 
Tirpitz (Ger.), 159 
Tompkins, Mr., 187 
torpedo, 3, 34, 49, 62, 63, 73, 85, 106, 107, 110, 126, 142, 151, 155, 158, 

158n, 159, 174, 184 
torpedo — high speed homing, 8, 158, 173 
torpedo — Kaiten or long lance, 158, 159n 
torpedo — self-propelled, 34, 158 
torpedo — stationary, 158 
Triton (U.S.), 7 

troop transport (troopship), 84, 85, 120, 123, 124, 137, 147, 183 
Truk, 142 

Tubingen (Ger.), 125 
Tucker, Prof., 65, 69, 121, 121n, 141n, 165n 
Turkey, 33, 35, 49n 

u 

U-boats, 21n, 67n, 116, 136, 137, 138, 141 

U-9, 4n 

U-156, 84, 85 

U-852, 139, 140 

Undeclared Atlantic Naval War (1941), 49-50 

United Kingdom, 4, 4n, 5, 5n, 6n, 8, 15n, 20, 22, 24, 32, 33, 34, 35, 35n, 
36, 36n, 37, 38, 39, 40, 41, 43, 44, 45, 46, 47, 47n, 49, 49nn, 50, 52, 60, 
61, 62, 62n, 63, 64, 64n, 65, 66, 66nn, 67, 67n, 68, 68nn, 71, 72, 73, 78, 
78n, 80, 80n, 86-87, 88, 89, 90, 95, 102, 104, 106, 107, 107n, 108, 109, 
HOn, 112, 113, 113n, 119, 121, 130, 131, 134, 136, 137, 141n, 142n, 
144, 144n, 148n, 157, 159, 160n, 161n, 162n, 163, 164, 165, 167n, 168n. 



TABLE OF CASES 
Judicial 

Brandt, United States v. ("The Medical Case") 1 Trial of War Crims. 1, 

314-54, 164n 
Connally v. General Construction Co., 269 U.S. 385, 391 (1926), 82n 
Case of Dithmar and Boldt (the Llandovery Castle case), German Reichs- 

gericht (July 16, 1921), reported in 16 AJJ.L. 708 (1912), 141 
Donitz case, 1 I.M.T. 311 (judgment); 18 I.M.T. 311 (testimony), 75, 

76, 77-83, 86, 87-88, 88n, 92, 115-17, 130, 135, 137-38, 140-41, 192-95 
Eichmann Case, Attorney General of the Governrnent of Israel v. Adolf, 

the son of Karl Adolf Eichmann, Crim. Case No. 40/61 Dist. Ct. of 

Jerusalem, Israel, December 11-12, 1916, AfFd Crim. Appeal No. 

336/61 Sup. Ct. of Israel, May 29, 1962, 24n 
The Flick Trial, 9 Reps. U.N. Comm. 1, 23 (1947), 13 
Goring case Judgment, 1 I.M.T. 279-82, 51n 
Interpretation of the Convention of 1919 Concerning Employment of 

Women During the Night, P.C.I. J., ser. A/B, No. 50, dissenting opinion 

at 383 (1932), 118n 
List, United States v., 11 Trials of War Crims. 757 at 1253-54; Trial of 

List, 8 Reps. U.N. Comm. 34 (1948), 18, 23 
Trial of Moehle, 9 Reps. U.N. Comm. 82 (1947), 133, 135, 140n, 141n 
The Nereide, 9 Cranch 388, 426 (U.S. 1815), 98n 
Ohlendorf, United States v. ("The Einsatzgruppen Case"), 4 Trials of 

War Crims. 1, 199, 213, 164n, 179 
The Paquete Habana, 175 U.S. 677 (1900), 15-16, 126-27 
The Peleus Trial, Trial of Eck, 1 Reps. U.N. Comm. 1 (1945), 21, 137n, 

139-42, 139n, 141nn, 142n 
Trial of Schoengrath, 11 Reps U.N. Comm. 83 (1946), 30 
Towne v. Eisner, 245 U.S. 418, 425 (1918), 186n 
Trial of Von Ruchteschell, 9 Reps. U.N. Comm. 82 (1947), 133, 135, 

140n 
The Zyklon B Case ("Trial of Tesch"), 1 Reps. U.N. Comm. 93 (1946), 

164n 

Diplomatic 

Altmark case, Colombos 600, 56n 

Bar along incident, Oppenheim-Lauterpacht 510, n.2, 142n 

Dresden case, Colombos 600-01, 56n 

229 



230 



Gapt Fryatt case, 1 Garner 407-13, 35 

Sussex case, Foreign Rel. U.S. Supp. 232 (1929), 107n 



* U.S. Government Printing Office : 1968 — O — 280-561